_____j SThe Advocate JOURNAL OF CRIMINAL JUSTICE EDUCATION & RESEARCH KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY VOLUME 22, ISSUE 4 JULY, 2000

The Work f the 2000 General Assembly

New New Criminal Defendei Laws Funding

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I THE ADVOCATE Volume 22, No. 4 July 2000

TABLE OF CONTEJ DPA ON THE WEB DPA Home l’age http://dpa.state.ky.us Criminal Law Links http:/Idpa .state.ky. us/-rwheeler 2000 General Assembly Funds

- Ernie Lewis 4-7 DPA Ed ucation http://dpa.state.ky. us/train. html DPA Employment Opportunities: New Law of the 2000 General Assembly http://dpa.state. ky. us/career. html - Ernie Lewis 8-13 The Advocate since May 1998: Changes in Laws Impacting Juveniles http://dpa.state. ky. us/advocate - Gail Robinson & Tim Arnold 14-15 Defender Annual Caseload Report: Sex Offenders on the Net: Kentucky’s http://dpa.state.ky. us/library/caseload. html Notification Sex Offender Registration and We hope that you find this service useful. If you have any suggestions or Statute Goes High Tech comments, please send them to DPA Webmaster, 100 Fair Oaks Lane. Frank - Carol Camp 16-18 fort. 40601 or webmastermail.pa.state.ky.us ********************************** Celebrate Freedom in Our Democracy PHONE EXTENSIONS by Celebrating Diversity DPA’s During normal business hours 8:30am - 5:00pm DPA’s Central Office 2000 Law Day Address telephones are answered by our receptiOnist, with callers directed to - Ernie Lewis 18-23 individuals or their voicemail boxes. Outside normal business hours, an automated phone attendant directs calls made to the primary num Eliminate the Death Penalty for Juveniles ber, 502 564-8006. For calls answered by the automated attendant. 5 testimonies presented before the House to access the employee directory, callers may press "9." Listed below Judiciary Committee 24-26 are extension numbers and names for the major sections of DPA. Make note of the extension numbers you frequently call -- this will aid our receptionist’s routing of calls and expedite your process through Breaking Through: Communicating the automated attendant. Should you have questions aboUt this sys and Collaborating with the Mentally tem or experience problems, please call Ann Harris or the Law Opera Ill Defendant tions Division, ext. 136. - Eric Drogin, J.D., Ph.D 27-34

Appeals - Renee Godbey #257

The Scope of the Right to Counsel in Capital Appeals - Michelle Crickmer #134 Kentucky Post-Conviction Proceedings Capital Trials - Sauda Brown #135

- Ed Monahan and Rebecca DiLoreto 34-37 Computers - Ann Harris #1 30/#285 Contract Payments - Vickie Manley #118 Public Defenders & Public Advocates: Deputy Public Advocate Office - Patti Heying #236 An Unnecessary Dichotomy Education - Patti Heying #236

- Thomas C. Glover 37-3 8 Frankfort Trial Office - Kathy Collins 502 564-7204

General Counsel Office - Lisa Blevins #294

Kentucky Caselaw Review Post-Trial Division - Lisa Fenner #279

- Shannon Dupree Smith 39-42 Juvenile Post-Dispositional Branch - Dawn Pettit #220

Law Operations - Tammy Havens #136 6th Circuit Review Library -Will Hilyerd #120 - Emily Holt 42-46 Payroll - Cheree Goodrich #114

Personnel - Al Adams #116

Plain View I Short View 47-50 Properties - Larry Carey #218 - Ernie Lewis Protection & Advocacy 502 564-2967 or #276

Public Advocate Office - Debbie Garrison #108

Practice Corner Recruiting - Doug Howard #117 Litigation Tips & Comments State & Capital Post Conviction 502 564-3948 - Collected by Misty Dugger 51 Timesheets - Karen Scales #117 Travel Vouchers - Vickie Manley #118

Trial Division - Laura Penn #230

2 THE ADVOCATE Volume 22, No. 4, July 2000

The Advocate The Advocate provides education and research for persons serving indigent clients in order to improve client representation and insure fair process and reliable results for those whose life or liberty is at risk. It educates criminal justice professionals and the public on de Our Legistature fender work, mission and values. The work of the 2000 General Assembly is fin ished. DPA has received substantial new funding The Advocate is a bi-monthly January, March, May, July, September, and there are many new laws. We report on both in November publication of the Department of Public Advocacy, an this issue including the testimony before the House independent agency within the Public Protection and Regulation Judiciary Committee of Rep. Eleanor Jordan, De Cabinet Opinions expressed in articles are those ofthe authors and do bra Miller, Ralph Kelly, Kerby Neil! and Ernie not necessarily represent the views of DPA. The Advocate welcomes Lewis on the bill to eliminate the death penalty for correspondence on subjects covered by it. If you have an article our juveniles. readers will find of interest, type a short outline or general description Authors and send it to the Editor. New In this issue we have new column authors: Shan non Smith for Ky. Caselaw Review formerly Copyright © 2000, Kentucky Department of Public Advocacy. All West’s Review, Misty Dugger for Practice Corner, rights reserved. Permission for reproduction is granted provided credit and Emily Holt for 6th Circuit Review. We thank is given to the author and DPA and a copy of the reproduction is sent them for helping to educate us. to The Advocate. Permission for reproduction of separately copy righted articles must be obtained from that copyright holder. Mentally Ill Clients We represent many persons who are mentally ill EDITORS: under the penal code and in 202A proceedings. Tom Glover helps us understand our responsibility Edward C. Monahan, Editor: 1984- present in 202A cases, and Eric Drogin offers many practi Erwin W. Lewis, Editor: 1978-1983 cal ideas on working with our clients who have Lisa Blevins, Graphics, Design, Layout mental illness.

Contributing Editors: RCr1 1.42 The right to counsel in RCr1 1.42 proceedings is an DiLoreto - Juvenile Law Rebecca area of confusion for some. We offer our interpre Misty Dugger - Practice Corner tation of the various legal authorities and we note Dan Goyette - Ethics some myths.

Emily bIt - 6th Circuit Review

Ernie Lewis - Plain View Law Day

Dave Norat - Ask Corrections At the request of Chief Justice Joe Lambert, Public Law Day Julia Pearson - Capital Case Review Advocate, Ernie Lewis gave this year’s presentation to the new lawyers and assembled dig Jeff Sherr - District Court nitaries. His remarks are reprinted in this issue. Shannon Smith - Kentucky Caselaw Review

Department of Public Advocacy Education & Development Edward C. Monahan 100 Fair Oaks Lane, Suite 302 Editor Frankfort, Kentucky 40601 Tel: 502 564-8006, ext 294; Fax: 520 564-7890 E-mail: lblevinsmail.pa.state.ky.us

Paid for by State Funds. KRS 57.375

3 THE ADVOCATE Volume 22, No. 4 July2000 2000 General Assembly Funds: Significant Part of Blue Ribbon Group Recommendations by Ernie Lewis, Public Advocate

The 2000 General Assembly has gone home. What net. They were joined by the they did for indigent defense, however, was dramatic new Chief Justice, Joseph and will have an impact for many years. The net ef Lambert, two Republican and Democratic leaders of the fect will be a substantial improvement in the quality Senate, David Williams and defender system and the representation of the public Larry Saunders, several rendered to poor people accused of crime in Ken Democratic and Republican tucky. Leaders of the House, Harry Moberly, Kathy Stein, and years is familiar to What has happened during the last four Jeff Hoover, two Bar Leaders, most readers but bears repeating. Four years ago, the of our Dick Clay and Don Stepner, Kentucky public defender system languished as the worst the current and former Public funded public defender system in the country. This was the Protection and Regulation case irrespective of the particular benchmark, including cost- Cabinet Secretaries, Ron per-capita, cost-per-case, and defender salaries. The 1998 McC loud and Laura Douglas, problem, increasing the General Assembly took a stab at the the Dean of Law Professors, Ernie Lewis, Public Advocate each year of the biennium. General Fund for DPA by $2.3 Robert Lawson, and many Department of Public Advocacy DPA to This allowed the other prominent Kentuckians including former Congressman implement 2000. Plan 2000 included as its primary fea Plan Scotty Baesler, former Rep. Jim Lovell, Commonwealth’s ture the enhancement of juvenile representation through sev Attorney Phil Patton, District Judge Denise M. Clayton, Ap eral measures. First, 5 new full-time offices were opened dur palachian Research and Defense Fund Executive Director and ing 1998-2000 in Paintsville, Columbia, Maysville, Bar Leader John Rosenberg, current and former Public Advo 47 counties were Owensboro, and Bowling Green. In 1996, cacy Commission members Bob Ewald and Bob Carran, and full-time office, while 73 counties were covered covered by a prominent businessman Richard Dawahare. The BRG had at contract lawyers. By the end of 2000, 82 coun by part-time, its disposal the top indigent defense consultant in the country, covered by full-time offices, while only 38 coun ties will be the The Spangenberg Group headed by Bob Spangenberg. ties will be covered by part-time, contract lawyers. DPA was thus able to keep pace with Commonwealth’s Attorneys, who The Blue Ribbon Group met throughout the spring of 1999, also continued during the last 4 years to move increasingly and issued its report on June 1, 1999. The basic findings of toward a full-time prosecutorial system. Juvenile enhance the BRG were stated in Findings #5-7 as follows: "The De ment also included the hiring of a second trainer whose focus partment of Public Advocacy Ranks at, or Near, the Bottom has been on improving the quality of juvenile representation. of Public Defender Agencies Nationwide in Indigent Defense Jeff Sherr was hired to fill this position, and he along with oth Cost-Per-Capita & Cost-Per-Case. The Department of Public ers has spearheaded the Gault Initiative which has gone a long Advocacy per Attorney Caseload Far Exceeds National way toward improving the quality of justice juveniles are re Caseload Standards. The Department of Public Advocacy ceiving at the hands of Kentucky public defenders. Ranks At, or Near, the Bottom of Public Defender Salaries Nationwide for Attorneys at All Experience Levels. All Corn-. Assem While much progress was made by the 1998 General ponents of the Criminal Justice System Should be Adequately bly, the systemic underfunding of Kentucky’s indigent defense Funded Particularly Public Defense. Overall the Department delivery system continued. Shortly after the 1998 General As of Public Advocacy is Under-Funded." The Blue Ribbon Advo sembly left town, the Public Advocate and the Public Group recommended stated in Recommendation #12 that the fundamental cacy Commission began to talk about tackling "$11.7 Million Additional Funding for Each of the 2 Years Is issue of chronic underfunding. Reasonable and Necessary to Meet DPA’s Documented In the spring of 1999, the Blue Ribbon Group on Improving Funding Needs as Described in PD 21." Indigent Defense in the 21’ Century BRG was formed to The Blue Ribbon Group reportwas presented to the Kentucky address this very problem. The membership was impressive, Criminal Justice Council in its June 1999 meeting. The criminal justice and built from a broad spectrum of Kentucky’s Criminal Justice Council decided for policy reasons not to leadership community. The co-chairs were Mike Bowling, make a specific finding on the Blue Ribbon Group’s budget former chair of the House Judiciary Committee, and Robert F. ary recommendation. However, the Criminal Justice Council Kentucky Supreme Stephens, at first the Chief Justice of the voted to support recommendations 1-11, which were the foun Court later named the Secretary of the Kentucky Justice Cabi

4 THE ADVOCATE Volume 22, No. 4, July 2000 dation of the $1 1.7 million budgetary recommendation. Further, loan forgiveness remains as an unmet need. The Blue Thereafter, the BRG Report was disseminated widely. Ribbon Group recommended in Recommendation #5 that "Loan Forgiveness Programs Should Be Made Available to In August of 1999, the Public Advocate and several members Prosecutors and Defenders." Defenders and prosecutors of the Blue Ribbon Group presented the report to Governor worked together on this effort. While a bill was introduced Paul Patton, Budget Director Jim Ramseay, the Secretary of that would have effectuated loan forgiveness for both prosecu the Governor’s Executive Cabinet, Crit Luallen, and other tors and defenders, we were unable to get the bill to move members of his staff. through the General Assembly. That remains a serious unmet need for both defenders and prosecutors. In January 2000, Governor Patton presented his Executive Budget to the 2000 General Assembly. The budget included The Full-Time System Has Advanced improving the Kentucky public defender system as one of the Governor’s priorities. Included in his recommended budget The Blue Ribbon Group Recommendation #3 was that the was $10 million additional General Fund dollars for indigent "Full-Time System Should be Completed." The 2000 General defense. This budget was based fundamentally on the Blue Assembly made great strides in fully funding this recommen Ribbon Group. This budget represented a commitment to dation. An additional 26 counties will transition from being fund the Blue Ribbon Group fully over a four-year period of covered by part-time contract lawyers to full-time by the end time. of the biennium.

The General Assembly fully adopted the Governor’s budget The primary way the full-time system will grow during the bi for Kentucky public defenders. Beginning July 1, 2000, DPA ennium will be through the expansion of existing offices into will have $4 million to spend on indigent defense during the surrounding counties. This will be accomplished in the fol first year of the biennium, and $6 million during the second lowing way: year. This $10 million infusion of funds will allow Kentucky to move off the bottom of indigent defense funding into the * The Frankfort Office will begin to cover Bourbon County middle. More importantly, it will enable Kentucky to ensure in July of 2000. In January of 2001, Woodford and Owen that poor citizens accused of crime will be given the justice County will be covered from the Frankfort Trial Office. that is their due. * The LaGrange Trial Office will begin to cover Spencer County July 2000. How will justice be improved with this increase in funding? * The Owensboro Office will cover Hancock and Ohio Counties beginning January 2001. Salaries Will Be Improved * The Hopkinsville Office will cover Todd and Logan Counties beginning January 2001. The 2000 budget includes $1.2 million for the first year and * The Bowling Green Office will cover Butler, Edmonson, $2.6 million for the second year of the biennium to improve Simpson and Allen Counties beginning January 2001. the salaries of public defenders. The original budget request * The Elizabethtown Office will cover Meade and Brecken based upon the recommendation of the Blue Ribbon Group ridge Counties January 2001. was for a 30% increase in the salary of each defender. DPA * The Stanford Office will move to Danville and cover requested 15% increase each year of the biennium. The press Boyle and Mercer Counties beginning January 2001. widely reported that the General Assembly funded 15% salary * The Morehead Office will cover Bath, Menifee, and raises. Unfortunately that is not the case. DPA is working Greenup Counties beginning January 2001. with The Governor’s Office of Policy& Management GOPM * The Maysville Office will cover Lewis County beginning and the Personnel Cabinet to determine how much the salary January 2001. raises will be. It is clear that the starting salaries for defenders will be increased from $23,388 to $28,000+ during the first Two new offices are scheduled to open in April 2001. An of year and $30,000+ during the second year. This will allow fice will open in Bullitt County in order to cover Bullitt and DPA to pay more reasonable salaries, and should assist in the Nelson Counties. Spencer County will be moved into the Bul recruiting and retention of new lawyers. Iitt Office at that time. An office will also be opened in Murray in April of 2001 to cover Marshall, Calloway and Unfortunately, I cannot report that the Blue Ribbon Group’s Graves County. The four river counties, Fulton, Hickman, Recommendation #4 that "Salary Parity is the Goal" has been Ballard, and Carlisle, will be divided between the Paducah and achieved. It is reported that prosecutors in Assistant Com Murray Offices. monwealth Attorneys funded by the Unified Prosecutorial System will have starting salaries of been funded at approxi By the end of this next biennium, DPA will have 27 field of mately $32,500 for the starting salaries of their new full-time fices covering 108 counties. These offices will be actively prosecutors. Public Defenders will start Attorneys at $28,000 supervised by directing attorneys. Additionally, they will be in 2000-2001 and$30,000 in 2001-2002. ‘Continued on page 6

5 THE ADVOCATE Volume 22, No. 4 July 2000

Continuedfrom page 5 Assembly. However, the budget will allow us to get a start by managed by 5 regional managers plus the Louisville Office’s funding one new Appellate Branch lawyer. By October 2000, Executive Director, Dan Goyette. Private lawyers will have a DPA will have 17 lawyers devoted to appellate work. vital role covering conflicts of interest in the 27 field offices. In addition, 12 counties will continue to be covered by part- $200,000 Additional Dollars will be Devoted to time contract lawyers. Conflicts of Interest Cases

Caseloads will be Reduced One of the difficult issues in public defender work where full- Blue Ribbon Group Rrecommendation #6 was that "Full-Time time offices are utilized is conflicts of interest. The Blue Rib Trial Staff Should Be Increased to Bring Caseloads Per Attor bon Group recognized the problem in Finding #13, which ney Closer to the National Standards. The Figure Should Be reads "Compensation for Private Bar Members Who are Ap No More Than 350 in Rural Areas and 450 in Urban Areas." pointed to Conflict Cases is Among the Lowest in the Coun DPA asked for 35 additional lawyers in order to be able to try." In the body of the report, the Blue Ribbon Group stated achieve this goal. that "[tb assure quality of counsel and sufficient number of conflict counsel, particularly in the rural areas of the state, in The 2000 General Assembly was not able to allot sufficient creased funding for conflict counsel must occur." funding to achieve the goal. Full funding of recommendation Recommendation #6 will have to await 2002. However, I am The 2000 General Assembly has helped fund the solution to happy to announce that 10 additional lawyers were funded to this problem by placing $200,000 in the first year and tackle the high caseload problem. These lawyers will begin $100,000 in the second year of the biennium into our conflict April 2001. They will be assigned to those offices with the budgets. This will allow private lawyers to be paid at a some highest caseloads as shown by DPA’s caseload tracking sys what higher level. Conflicts of interest will remain a problem, tem. however, until the Blue Ribbon Group is fully funded.

One Lawyer for Capital Trials The Infrastructure of DPA Will Improve

The Blue Ribbon Group Recommendation #10 was that it was Blue Ribbon Group Finding #12 recognizes that as "DPA "imperative that Kentucky Reasonably Fund Indigent Capital Moves Toward a Fully Staffed Statewide Program, the De Defense both at the Trial and Post-Trial Levels." The DPA mands on the Law Operations Division LOPS Will Grow budget request was for $1.8 million for both the trial and post- Dramatically. Currently, the Number of Staff at LOPS Will trial levels to improve our representation of persons charged Need to be Expanded during the Implementation of PD2 I ." with or convicted of capital crimes. The major part of that plan was to regionalize the representation at the trial level, The 2000 General Assembly funded a significant part of this with teams of 2 lawyers and I mitigation specialist being finding by funding 4 new positions. This will enable DPA to placed in each ofthe 5 regions. have the staff sufficient to support the accounting, library, technology, and other functions vital to running a statewide The 2000 budget will enable DPA to hire I additional capital system. trial lawyer. This lawyer will be placed in the Frankfort Capi tal Trial Branch. Many Exciting Activities will Occur without New Funding One Lawyer for the Appeals Branch The primary activity of DPA is providing counsel to indigents When I became Public Advocate, the Appellate Branch con accused of and convicted of crimes. However, DPA is also sisted of only 8 V2 lawyers. At the same time, the Attorney charged with doing other things, such as "conducting research General’s Criminal Appellate Division consisted of 26 law into methods of improving the operation of the criminal justice yers. Today, 16 lawyers are doing appellate work for DPA, system with regard to indigent defendants and other defen including 10 in the Appeals Branch, 4 in the Capital Appeals dants in criminal cases." KRS 3 1.0307. Branch. and 2 in the Juvenile Post-Dispositional Branch. There are also two appellate attorneys in the Jefferson County 2000-2002 promises to be an exciting time for DPA as we im Public Defender Office. DPA requested 6 additional appel plement the 2000 budget, and as we make efforts to improve late lawyers in order to come closer to parity with the Attorney the criminal justice system. Included in our plans are the fol General’s Office. This request was in response to the Blue lowing: Ribbon Group’s Finding #10, "The Appellate Branch is Lim * Continued juvenile enhancement. DPA will continue to ited in its Ability to Handle the Workload in the court Court of try to raise the level ofjuvenile representation across the Appeals and the Supreme Court." Commonwealth. * Focus on the unrepresented juvenile. The problem in This finding will need to be addressed in the 2002 General Kentucky is not just the quality of representation for juve

6 THE ADVOCATE Volume 22, No. 4, July 2000

niles. Unfortunately, the problem is all too often that ju of the biennium to fund fully all of the BRG recommendations. veniles are being adjudicated without counsel. This hap The most significant needs remaining will be: pens for a variety of reasons, including the inadequate coverage by public defenders in contract counties, the * Caseload reduction. A reasonably paid public defender mass waiver of counsel, the intervention of parents, and cannot be effective if his/her caseload is too high. De other reasons. DPA along with the Department of Juve pending upon the number of cases that come in during the nile Justice have recognized this to be a significant prob next two years, it will take an estimated $2 million to meet lem in Kentucky’s court system. A bill which would have our goals of 450 open cases per lawyer per year in urban addressed this passed the Senate but failed in the House in areas and 350 in rural areas. 2000. DPA is committed to ensuring during the next two * Completion of full-time system. It will cost an estimated years that all those juveniles eligible for the appointment $1,100,000 to open offices in Glasgow, Cynthiana, and of counsel have counsel when important decisions about Boone County and cover the remaining counties. their lives and futures are being decided. * Completion of proposal for adequate capital defense fund * The Innocence Project. The Post-Conviction Branch has ing. This will cost approximately $1.7 million. offices in Frankfort, LaGrange, and Eddyville. This * Completion of appellate branch expansion. This will cost branch represents inmates in numerous post-conviction approximately $400,000. matters, including RCR11.42s, CR 60.02s, and federal * Access to court for juveniles and adult inmates. The indi habeas. An increasing concern at the national level has gent post-conviction effort was not funded by the 2000 been that individuals who can be proven innocent, par General Assembly. It is estimated that $600,000 is ticularly through new technologies such as DNA, are be needed to fund access to court for adult inmates and juve ing held in prisons, including far too many on death row. niles in treatment and detention facilities. The Post-Conviction Branch will begin an innocence proj * Field Office Support Staff. DPA is support-staff short. ect inspired by the now famous efforts of Professors Barry We are not able to make use of efficiencies such as para Scheck and Peter Neufeld. This will be an effort under legals and social workers that other defenders and private taken to bring new technologies to bear to ensure that in lawyers are able to do. One additional support staff per nocent prisoners are having their claims of innocence office would cost approximately $1 million each year. fully adjudicated. * Salary parity with Kentucky prosecutors. * Revenue Sharing. DPA is beginning an experiment to see whether sharing some portion of the Administrative Fee Conclusion pursuant to KRS 31.0512 with the local offices might be a successful way for conflict cases to be funded. DPA is very grateful to the Governor Paul Patton, the 2000 * DPA will host conduct a Defender Leadership Practice General Assembly, the Blue Ribbon Group, the Criminal Jus Institute in the winter of 2001 to train educate our present tice Council, and the many members of the Judiciary, public and future defender leaders in good management and su defenders, Commission and Board members, and others who pervision skills. were supportive of our budget during the 2000 General As * The Post-Trial Division will create a conflict unit for sembly. This budget will go far in meeting the recommenda capital post-conviction cases. This unit will be housed in tions of the Blue Ribbon Group, and the promise of Gideon.* the LaGrange Post-Conviction Office, and will necessitate a relocation of that office. * DPA will produce a current death penalty manual in time for the Capital Litigation Persuasion Institute to be con ducted this fall. * DPA will engage in an office quality review project, whereby trial division leaders will visit our field offices to "The rung of a ladder was never meant ensure that certain benchmarks of a good field office are being followed. to rest upon, but only to hold a man’s * DPA will continue to implement standards of practice foot long enough to enable him to put adopted by both the Trial Division and the Post-Trial Di other somewhat higher." vision. the There is Much Left to Accomplish in 2002 -Thomas Henry Huxley, Lifeand Lettersof Thomas Huxley It will take four years to fund the recommendations of the Blue Ribbon Group. The 2000 General Assembly took a giant step toward full funding of those recommendations. It is estimated, however, that it will take an additional $6-7 million each year

7 THE ADVOCATE Volume 22, No. 4 July 2000

New Laws Of The 2000 General Assembly . Ii by Ernie Lewis, Public Advocj

SEXUAL ASSAULT unlawful confinement of a minor, a sex crime with a conviction SENATE BILL 263. This is the primary bill coming out of prior against a minor or a prior sex crime the Governor’s Sexual Assault Task Force. It continues the conviction, any person with 2 or more criminal offenses trend of creating special laws for sex offenders, increasing against a minor victim, anyone who has been convicted of rape sodomy the first degree, and any sexually penalties, and ensuring treatment. The wide-reaching provi or in violent predator. All other registrants must register for sions include the following: 10 years. The duty to register ends only when his con * The date rape drug, gamma hydroxybutyric acid, is in viction is reversed or he receives a pardon. Persons con cluded as a Schedule I drug. victed of sex crimes, criminal offenses against a victim * Violent offenders are no longer eligible for shock proba who is a minor, and "sexually violent predators", are tion under this amendment to KRS 439.265 or probation required to register prior to their release with the local under the amendment to KRS 439.3401. probation and parole office in the county in which they * The definition of deviate sexual intercourse under KRS intend to reside. The definition of "criminal offense 510.010 is expanded to include the "penetration of the against a victim who is a minor" has been expanded un anus of one person by a foreign object manipulated by an der KRS 17.500 to include kidnapping, unlawful con other person." All sexual offenses involving anal penetra finement, promoting a sexual performance of a minor, tion with foreign objects are moved to the sodomy statute. promoting prostitution when the "defendant advances or * The one-year statute of limitations involving claims of sex profits from the prostitution of a person under the age of ual assault by one spouse against another spouse has been 18, use of a minor in a sexual performance, sexual abuse eliminated. 2 and 3" degrees, and any attempts of the included of * Third and subsequent sexual assault misdemeanors are fenses. Upon the person’s release, he must report to a now Class D felonies. The Commonwealth must indict as local detention facilitity where he is fingerprinted and a felony if it desires to proceed under this section. In a photographed. The fingerprints and photographs are curious section that will have to be fleshed out, the statute sent to the Information Services Center with the Ken reads that the "jury, or judge if the trial is without a jury, tucky State Police. When the released person changes may decline to assess a felony penalty in a case under this his address, he must notify his current probation and pa section and may convict the defendant of a misdemeanor." role officer prior to changing his address. He must regis This raises questions about lesser-included offense instruc ter with his new probation and parole officer within 5 tions, how the jury is to "decline to assess a felony pen days of the date of the change of address. If the person alty," and other concerns. fails to register, or to register his change of address, he * "Megan’s Law" has been altered significantly, mostly to may be charged with having committed a Class D felony. comply with federal statutory requirements under the Ja The Justice Cabinet is required to verify addresses of cob Wetterling Crimes Against Children and Sexually registrants every 90 days for lifetime registrants, and Violent Offender Act [42 U.S.C. 14071 et seq.]. Carol every year for those required to be registered for 10 Camp of the DPA has written an extensive analysis of this years. The role of the Sex Offender Risk Assessment section of the Bill, and the reader is referred to her work, Advisory Board has shifted to include the approval of particularly for questions raised and possible challenges to providers who conduct comprehensive sex offender pre the statute. The primary shift in the Bill is that informa sentence evaluations. The comprehensive sex offender tion has been placed on a KSP Website rather than dis presentence evaluation is to be done pursuant to a court seminated through the media and law enforcement. The order at the time of conviction prior to sentencing. The Website carries the registrant’s photograph, his address, evaluation is to be done by approved providers who look age, race, sex, date of birth, height, weight, hair and eye at the issues of the threat posed to public safety, amena color, aliases used, briefdescription of the crime commit bility to sex offender treatment, and the nature of the re ted, and other information to be required by the Justice quired sex offender treatment. Communications made Cabinet through the regulatory process. Classifications of during the comprehensive sex offender presentence high, moderate, and low risk have been abolished. Hear evaluations or treatment are privileged. Registrants are ings have been abolished. The previous definition of sex barred from residing within one thousand feet of a high offender has been replaced by a very simple definition: school, middle school, elementary school, preschool, or "Sex offender’ means a person who has been convicted of licensed day care facility. Persons are prohibited from a sex crime as defined in KRS 17.500." There are two using information obtained from the Website to harass a classifications of registrants. Registrants must register for registrant. Harassment is a Class B misdemeanor. life if they have been convicted of kidnapping of a minor,

8 THE ADVOCATE Volume 22, No. 4, July 2000

HOUSE BILL 237. This bill pertains to the creation and role "functional or not." of the "children’s advocacy center." These centers are agen * Children transferred to circuit court and convicted and cies that advocate "on behalf of children alleged to have been placed in a DJJ facility may be sent to an adult prison for I abused; that assists in the coordination of the investigation of escape. child abuse by providing a location for forensic interviews and * Some changes have been instituted with supervised place promoting the coordination of services for children alleged to ment revocation hearings. A preliminary hearing is to be have been abused Other provisions of the bill are: held with 5 days of the child being taken into custody, ex * Children’s advocacy center staff are to be on multidisciplin clusive of weekends and holidays, unless the child agrees ary teams investigating child abuse. to a longer period oftime. If the child is returned to active * Interviews with children are to take place in children’s advo custody at the preliminary hearing, a final hearing must be cacy centers "to the extent practicable and when in the best held with 10 days. At the hearing, DJJ has both the power interest of a child." to administer oaths and to issue subpoenas. DJJ is given * The Cabinet for Families and Children are to "participate in regulatory power to govern commissioner’s warrants, the all investigations of reported or suspected sexual abuse of a procedural aspects of the hearing, the burden of proof, the child." standard of proof, and the appeals process.

JUVENILE LAW HOUSE BILL 296. This is another very extensive bill which changes many provisions of the laws pertaining to detention SENATE BILL 256. This is one of the two major bills per and status offenders. Among the changes but by no means taining to juvenile justice. Among the changesin this bill are exclusive featured in this bill are the following: the following: * A definition is given to "beyond the control of school" * A philosophical section is added to KRS 600.0 10 regarding which is to be "found by the court to have repeatedly vio the public offender section of the juvenile code, KRS lated the lawful regulations for the government of the Chapter 635, sayingschool that the chapter will be interpreted "to The status petition must "describe the student’s promote the best interests of the child through providing behavior and all intervention strategies attempted by the treatment and sanctions to reduce recidivism and assist in school." making the child a productive citizen by advancing the * A definition is given to "beyond the control of parents" principles of personal responsibility, accountability, and which means a child "who has repeatedly failed to follow reformation, while maintaining public safety, and seeking the reasonable directives of his or her parents...which be restitution and reparation." havior results in danger to the child or others..." * A philosophical section is added to KRS 600.0 10 regarding * A definition is given to "detention" which means "the safe the youthful offender section of the juvenile code, KRS and temporary custody of a juvenile who is accused of con 640, saying that KRS 640 "shall be interpreted to promote duct subject to the jurisdiction of the court who requires a public safety and the concept that every child be held ac restricted environment for his or her own or the commu countable for his or her conduct through the use of restitu nity’s protection." tion, reparation, and sanctions, in an effort to rehabilitate * Status offenders are to be detained in a nonsecure facility, a delinquent youth." secure juvenile detention facility, or a juvenile holding fa * Victims are included as interested parties in juvenile court cility for not longer than 24 hours pending a detention who have a right to "prompt and fair hearings." hearing. * An entity called a youth alternative center is created for use * Public offenders may be held for 48 hours in a secure juve as a place of detention prior to and after adjudication for nile detention facility or juvenile holding facility pending a status, public, and youthful offenders. These are nonsecure detention hearing. facilities. Youth alternative centers may be created by the * Status offenders are not to be detained following the deten county applying to DJJ for the construction and operation tion hearing unless the child is accused of violating a valid of the center. court order. Status offenders are to be detained following a * Children accused of public offenses may be detained for 72 detention hearing in a nonsecure setting. If the status of hours in intermittent holding facilities which are approved fender is charged with violating a valid court order, the by DJJ. Jail employees may supervise juveniles as well as child may be detained in secure detention only after the adults. court holds a hearing and finds that there is probable cause * KRS 610.3 10 is amended to allow a juvenile court to send to believe the child has violated a valid court order. The a child for mental health examination and evaluation when child may be detained for 72 hours following his detention the "mental or physical" health of the child before the court hearing, after which a written report must be filed review-S requires it. ing the behavior of the child and the circumstances in * The mandatory transfer statute for juveniles using firearms volved. The report must address the reasons for the child’s during the commission of a felony is amended to allow for behavior, and whether "all dispositions other than secure prosecution irrespective of whether the firearm is Continued on page /0

9 THE ADVOCATE Volume 22, No. 4 July 2000

Continuedfrom page 9 succeeds at purchasing a firearm. Another section amends detention have been exhausted or are inappropriate." KRS 508.130 to define a protective order as including Within 24 hours of receipt of the report, a violation hearing EPOs, DVOs, foreign protective orders, pretrial release for must be held. persons accused of assault, sexual offenses, domestic vio * Children charged with a public offense are to be detained lence cases under KRS 431.064, and any other bond, pro depending upon whether there is in the county a state oper bation, parole, or diversion order "designed to protect the ated secure detention facility under the statewide detention victim from the offender." KRS 508.140 is amended to plan. If there is such a facility, DJJ conducts an assessment allow a prior misdemeanor conviction for stalking to be and places the child in one of its detention facilities. If among those offenses which would cause a subsequent of there is no such facility, the child may be held in a secure fense to be prosecuted as a felony. juvenile detention facility, juvenile holding facility, or a * The statute also creates a felony for the conviction of 3 as nonsecure setting. saults in the 4th degree against family members as defined * Status offenders are not to be charged with escape "for be in KRS 403.720. This section also has the same curious ing absent without leave or failing to comply with the con language that "the jury, or judge if the trial is without a ditions of supervised placement." jury, may decline to assess a felony penalty in a case.. .and * The bill reaffirms "the inherent contempt power of the may convict the defendant of a misdemeanor." court..." DUI HOUSE BILL 10. This very simple bill outlaws the posses sion or use of tobacco products by someone under 18. If the HOUSE BILL 366. This bill represents a major shift in DUI police see a minor possession tobacco products in plain view law, particularly the change from .10 to .08. Bob Lotz has the officer may confiscate the tobacco products. written extensively on this bill, and the reader is encouraged to seek his handouts for potential challenges to the bill. Some of DOMESTIC VIOLENCE the changes in this 50 page bill are as follows: 116. This bill was one the pieces of legis * DUI is partially defined as "[h]aving an alcohol concen SENATE BILL of tration of.08 or more..." lation proposed by the Governor’s Council on Domestic Vio lence. There are numerous provisions to the bill, including: * Both the .08 and the .02 provisions establish the validity of the test taken within 2 hours of "cessation of operation * KRS 196.280 is amended to expand the scope of the VINE VINE or physical control of a motor vehicle." If the test is done notification system. State prisons are part of the sys prosecution wardens must provide notice to the VINE after 2 hours, the results are inadmissible for tem. Jailers and under .08 and .02, unless the test is done by the defense release of the inmate from the facility or in system before following the taking of the requested state tests. stitution. The notice is also to be done when someone es capes from a penitentiary, juvenile detention facility, re * Declining to take a blood or urine test is a refusal only if gional jail, or county jail. the refusal occurs at the test site. * License suspension is to be done by the court. The * KRS 411 is created to create a civil action against a person who commits the acts of stalking in the first and second DOT’s role is to administer "the suspension period under degree. The action is not dependent upon a conviction or the terms and for the duration enumerated by the court in even a charge of stalking. The statute of limitations for its order..." bringing the charge is 2 years within the last act of stalking. * The .18 sentencing provision is eliminated as a separate provision, and transformed into an aggravating circum * KRS 43 1.064 is amended to require the circuit clerk to stance. place the conditions of release into the computer within 24 hours following filing of the conditions. This is entered * The presence of certain aggravating circumstances will into LINK. The effect of this provision will be to allow cause a mandatory and nonprobatable 4 days in jail for a first time offender, 14 days for a 2d offense, 60 days for law enforcement officers on a 24-hour basis to verify the 3rd 4th existence and validity of pre-trial release conditions. a offense, and 240 days for a offense. Among the * KRS 438.250 and KRS 5 10.320 are amended to allow vic aggravating circumstances are speeding 30 miles an hour direction on a limited ac tims of crime to have the written results of the blood tests over the limit, going the wrong cess highway, causing an accident resulting in death or required to test for HIV when someone is bitten or other serious physical injury, having a blood alcohol level wise suffers from a puncture wound by an inmate or person above .18, refusing to submit to a test, and transporting a charged with a crime. child under 12. SENATE BILL 263. This is primarily a bill pertaining to sex * License revocation is for 30-120 days for a first offense, ual assaults. There are two significant changes pertaining to 12-18 months for a second offense, 24-36 months for a 3 domestic violence in this bill: offense. 60 months remains the revocation period for a * One section of the bill creates a new section of KRS 237 fourth or subsequent offense. which requires notice to law enforcement and victims when * A person cannot either operate or be in physical control of a person under a domestic violence order attempts to or a motor vehile while his license is revoked dr suspended

I0 THE ADVOCATE Volume 22, No. 4, July 2000

due to a DUI, unless there is a functioning ignition inter lock device. If the person violates this section, it is a Class CRIMINAL GANGS B misdemeanor, unless he was also driving while intoxi cated in which case it is a Class A misdemeanor, for a first SENATE BILL 223. This bill makes significant changes to offense. For a offense, it is a Class A misdemeanor and the criminal gang statute. It eliminates KRS 503.130 alto criminal a Class D felony if driving while intoxicated. For a 3 or gether and amends KRS 506.140 and 150, the Some of the subsequent offense, the driving on a suspended license is a gang recruitment and activity statutes. are as follows: Class D felony. changes offenses * The breath, blood, and urine tests are to be performed only * The enhancement section for committing certain contained in KRS "after a peace officer has had the person under personal in furtherance of criminal gang activity observation at the location of the test for a minimum of 503.130 is gone. twenty 20 minutes." * The only gang related crime now remaining is that of crimi * Warnings at the time of the test must be that if a person nal gang recruitment, a Class A misdemeanor for the first refuses, his mandatoryjail time will be doubled and that he offense, and a Class D felony for a second or subsequent will not be allowed to obtain a hardship license, that the offense. tests can be used against him including that if the results * The definition of "criminal gang activity" in KRS 506.130 are .18 or better his mandatory jail time will be doubled, has been eliminated. In its place is a definition of a Commonwealth and that a person can have his own test if he submits first to "criminal gang" under KRS 506.150. The the state’s tests. will be allowed to prove the existence of a criminal gang by to contact an attorney and must be proving many of th same factors previously contained in * A person has a right evidence, given 10-15 minutes to do this prior to the test being given. KRS 506.1303. Added to the list of admissible means of recognition, An attorney may be present at the testing if she can be there however, is proof of insignias, flags, other qualifications, creed of within the time frame established by the statute. codes, membership, age, or belief, concentration or specialty, or a method of operation * A refusal will result in license suspension while the case is or criminal enterprise. being prosecuted. If the court determines that a refusal did * KRS 506.1401 requires that the recruitment or enticement occur, even if the defendant is not convicted his license is be to join a criminal gang rather than any other kind of still suspended as if he had been convicted. gang. * Licenses are suspended by the court pretrial if the court the evi * Criminal gang is defined as follows: "[A]ny alliance, net finds after holding a hearing by a preponderance of or more violation of the statute and work, or conspiracy, in law or in fact, of five 5 dence that the person was in that, through its accident resulting in death or serious persons with an established hierarchy that there was an of member, engages physical injury. membership or through the action any criminal activity." "Fraternal ignition interlock device before in a continuing pattern of * The court may require an organizations, unions, corporations, associations, or similar hardship license. granting a entities" are excluded from the definition. * The crime of possession of an open alcoholic beverage * A "continuing pattern of criminal activity", essential to the container in a motor vehicle on a public highway is created. definition of criminal gang, means "a conviction by any open containers, or containers with the seal broken, Both member or members of a criminal gang for the commis must be in the glove compartment, in the trunk, or in the sion, attempt, or solicitation of two 2 or more felony of back hatch in order to avoid prosecution. The penalty is a fenses, the commission of two 2 or more violent misde fine of$35-$ 100. meanor offenses, or a combination of at least one 1 of * The bill creates an elaborate and complicated law utilizing these felony offenses and one1 of these violent misde devices. the installation of functioning ignition interlock A meanor offenses, on separate occasions within a two 2 that a second con simplistic account of this section is upon year period for the purpose of furthering gang activity." viction, the court must impound the license plates of all relevant to the definition of the court orders * A "violent misdemeanor", vehicles owned by the defendant, unless "continuing pattern of criminal activity" means 4th degree ignition interlock device. At the conclu installation of an assault, menacing, 2d degree wanton endangerment, terror sion of the license revocation period, the court may order criminal abuse, 2nd degree device on istic threatening, 3 degree that a person must have an ignition interlock stalking, 2 degree unlawful imprisonment, and criminal violates the court order, the court may their car. If a person coercion. then order the device to be placed on the car for ever- number of vio increasing time period depending upon the THEFT OF IDENTITY lations. * If the police record the stop, they must film the field sobri HOUSE BILL 4. This bill creates a new section of KRS ety tests in their entirety and that portion of the pursuit and Chapter 514 entitled Theft of Identity. Some of the promi stop which were recorded. If a videotape has been made nent features of this new crime are as follows: by the officer, that is to be noted on the uniform citation. * The service fee is raised from $200 to $250. Continued on page /2

I I THE ADVOCATE Volume 22, No. 4 July 2000 ontinued/ro,n pug& I I CFC does not respond to the notice within the time period, the * The crime of theft of identity is a new Class D felony. CFC records are also expunged. If CFC prevails on the mo * Theft of identity is the knowing possession or use of identi tion, the expungernent does not apply to CFC’s records. fying information without the other person’s consent with the purpose of representing that the defendant is the other SENATE BILL 263. Victims must be notified by the Com person in order to obtain some sort of profit, including ob monwealth’s Attorneys of hearing dates for shock probation or taining "political" benefit. bail pending appeal and the results of the hearings. * A minor using someone else’s identification to buy alcohol or tobacco is not included in the definition. SENATE BILL 218. This bill amends several sections of the * Venue lies where the crime is committed or where the vic KRS, and creates new ones, addressing the issue of child sup tim resides. port. Included in the bill are the following provisions: * A crime of trafficking in stolen identities is also created. It * KRS I 54A.060 is amended to ensure that CFC gets to the is a Class C felony, and is defined as the manufacturing, Kentucky Lottery Corporation a list of delinquent child selling, transferring, etc. of personal identities. Possession support obligors, and that the Lottery Corporation withhold of 5 or more personal identities is prima fade evidence of delinquent child support monies from the prizes of lottery the possession of the identities for the purpose of traffick winners. ing. * KRS 205.7 12 to 205.800 have additions to them. CFC and * A civil action for compensatory and punitive damages is the Revenue Cabinet are encouraged to work together. also created. CFC is required to "establish a statewide program to help * The Attorney General’s Office and the Commonwealth’s low-income, noncustodial parents find and keep employ

Attorneys have concurrentjurisdiction over the prosecution ment. . . to reduce welfare payments by helping participants of these offenses. become financially responsible for their children... The program shall also encourage noncustodial parents to be OTHER actively involved in their children’s lives. * CFC may enforce child support liens by disabling the car of SENATE BILL 256. In addition to making significant the delinquent parent. This is done by applying for ap changes in juvenile law, as described above, this bill also proval to the Circuit Court. Upon approval, a "vehicle added 3 people to the Criminal Justice Council, the Commis boot" may be placed on the car. This may be done upon an sioners of DJJ, Corrections, and the Department of Criminal arrearage of 6 months without payment, and after subpoe Justice Training. nas and warrants relating to child support proceedings have SENATE BILL 316. This bill amends KRS 5 14.040 by al been ignored, resulting in a lien filed in the county where lowing the maker of a check to pay a "merchant’s posted rea the vehicle is kept. Before the boot is placed on the car, sonable bad check handling fee" of up to $25 in order to make the owner/parent receives a notice of the intent to boot, good on a bad check. The County Attorney’s fee has also with a target date for the booting indicated in the notice. been raised to $25 from $10 under the previous version. Once the vehicle has been booted, CFC and the parent! owner then "shall attempt to reach a payment agreement... SENATE BILL 65. This bill amends KRS 218A.1412 to in including terms for the release of the vehicle." clude methamphetamine in the trafficking in a controlled sub * It is made clear that the child support arrearage continues stance in the first degree section. This apparently cleaned up after emancipation of the child. language from the 1998 bill that was unintended. * CFC may compile a list of parents with arrearages in ex cess of 6 months and give this list to the newspaper for SENATE BILL 137. This bill amends KRS 216.793 to in publication. clude AOC along with the Justice Cabinet as being the entities * The Attorney General’s Office receives the list of parents who create the process and forms for requests for criminal rec with 6 months’ excess child support payments and they are ords. The Justice Cabinet is allowed to contract with AOC to to place the list on an agency internet site. The OAG is conduct criminal records or backgrounds checks. also to distribute a list of "most wanted" child support "delinquent obligors." SENATE BILL 167. This bill amends the expungement stat ute, KRS 431.076, when the charge relates to the abuse or ne SENATE BILL 326. This bill increases the amount of court glect of a child. In those situations, the court must notify the costs that are paid to sheriffs from $5 to $12, and increases the the Cabinet Families and Office of General Counsel of for amount of court costs in criminal cases. Children of any motion and hearing to expunge the criminal charge. Counsel for CFC is required to respond within 20 HOUSE BILL 156. This bill amends the concealed/carry laws days of the notice where CFC has records which indicate that to eliminate the pistol packing preacher provision. However, "the person charged with the criminal offense has been deter by so doing, it also eliminates the exemption for churches gen mined by the cabinet or by a court under KRS Chapter 620 to erally. The end result is confusing, but may mean that a per be a substantiated perpetrator of child abuse or neglect." If son with a concealed carry license may take weapons into

12 THE ADVOCATE Volume 22, No. 4, July 2000 church. addition to knowledge that the property has been stolen the "reason to believe that it has been stolen." HOUSE BILL 331. This bill requires that all confiscated or abandoned firearms are to be sent to the KSP for disposition. HOUSE BILL 789. This bill creates the crime of counterfeit Unless the KSP transfers the gun pursuant to these statutes, the ing in intellectual property. Under this provision it is a crime guns are to be sold to properly licensed gun dealers. to manufacture, use, display, advertise, distribute, offer for sale, sell, or possess with the intent to sell "any item or service HOUSE BILL 355. Parents who kill their spouse are not to be that the person knows bears or is identified by a counterfeit given visitation rights unless the court determines that the mark," which is defined as "any unauthorized reproduction or "visitation is in the child’s best interest." copy of intellectual property; or intellectual property know ingly affixed to any item without the authority of the owner of HOUSE BILL 433. KRS 525.155, the grave violation statute, the intellectual property." It is to be contained in KRS 365. is amended to require the court to order the defendant to First offense is a Class A misdemeanor; the second offense is a "restore the cemetery to its pre-damage condition." Class D felony.

HOUSE BILL 439. This bill creates the "Senior Status Pro HOUSE BILL 830. This bill amends KRS 533.262 to allow gram for Special Judges" as a pilot project. Under this provi the Supreme Court and the Department of Corrections to create sion, judges may elect to become senior status special judges by drug court diversion programs outside the pretrial diversion committing to serving as special judges for 120 work days per programs authorized by KRS 533.250 to 533.260. year for a term of 5 years without compensation other than in creased retirement benefits. If the special judge works more HOUSE BILL 919. This bill cleans up numerous provisions than 120 days per year, he is compensated for that time. of the statutes allowing for offenses to be prepayable only where they are violations. Violations are not prepayable where HOUSE BILL 454. This bill adopts the interstate Compact for a deadly weapon or dangerous instrument is seized, where the Adult Offender Supervision. An Interstate Commission for offense is cited with a nonprepayable offense, or an arrest is Adult Offender Supervision is created with broad powers to made. Misdemeanors are not to be prepayable. Numerous regulate and manage the system managing the supervision of offenses that were formerly classified as misdemeanors have adult offenders moving between states. been changed to violations in order to maintain their status as being prepayable.* HOUSE BILL 475. This bill creates several changes to laws effecting contact between prison guards and inmates. Throw ing body fluids onto a juvenile worker by a public offender is a third degree assault. Sexual contact caused by the prison 2u,d worker upon an inmate is sexual abuse in the degree.

HOUSE BILL 533. This bill requires that Class C felons join Class D felons in serving their time in county jails. Sentences must be greater than 5 years, and the person must be classified by DOC as appropriate for community custody. This can only occur if beds are available in the jail and state facilities are at capacity and halfway house beds are being fully utilized. Per sons convicted of sex offenses and given 2 years continue to often and much; to win the respect serve their time in a DOC facility. Jails can opt out of this stat "To laugh of ute. If they choose to house Class C felons, they must offer of intelligent people and the affection "programs as recommended by the Jail Standards Commis children; to earn the appreciation of honest sion." Inmates in county jails will be allowed to work at com critics and endure the betrayal of false munity-service-related projects under a plan written by the friends; to appreciate beauty, to find the best jailer and approved by the fiscal court. in others; to leave the world a little better; healthy garden patch or a HOUSE BILL 678. This bill amends KRS 532.358 to require whether by a child, a payment of home incarceration fees for those who serve time redeemed social condition; to know even one life under condition of home incarceration. has breathed easier because you have lived. This is the meaning of success." HOUSE BILL 685. Abuse of a corpse is presently a Class A misdemeanor. Under this bill, it becomes a Class D felony un -Ralph Waldo Emerson der KRS 525.120 where "the act attempted or committed in volved sexual intercourse or deviate sexual intercourse with the corpse." Further, KRS 514.110 is amended to allow for con viction for receiving stolen property when the defendant has in

13 THE ADVOCATE Volume 22, No. 4 July 2000 CHANGES IN LAWS IMPACTING JUVENILES

- AN OVERVIEW by Gail Robinson, Juvenile Post Disposition Branch JPDB Manager & Tim Arnold, Assistant Public Advocate, JPDB

The 2000 session of the General Assembly enacted relatively petitions which do not conform to those requirements and ask Jew laws affecting juveniles who may be subject to the juris for directed verdicts when the proof does not meet the neces diction of the Juvenile Code. This article supplements Ernie sary standards. Hopefully, these new definitions will limit pe Lewis ‘s "New Laws of the 2000 GeneralAssembly" and con titions filed because ajuvenile was disrespectful to a teacher or tains some background, analysis and practice tips. failed to do his chores. By narrowing the class of eligible status offenders to those juveniles who clearly need the serv HB 296 ices of the court, the General Assembly has enabled the juve The most far reaching and potentially beneficial piece ofjuve nile courts to spend more time with needy juveniles, wasting nile legislation enacted in this session was House Bill 296. less time on kids whose problems can be readily addressed The bill was proposed by the Juvenile Justice Advisory Com within the community. mittee JJAC to deal with portions of Kentucky’s Juvenile Code which conflicted with provisions of the federal Juvenile "Valid Court Order" De Justice and Delinquency Prevention Act JJDP Act of 1974. fined For many years, Kentucky had been out of compliance with HB 296 also includes a defini the JJDP Act relating to status offenders and thus had failed to tion of "valid court order." receive significant federal funding. The JJAC and the Depart This term comes from the ment of Juvenile Justice have been determined to bring Ken JJDP Act. While that Act tucky into compliance with that Act, and significant progress generally bars secure deten has been made. Enactment of MB 296 is another substantial tion of status offenders, there step in bringing Kentucky into compliance with the Act. is an important exception for Moreover, it should promote protection of the rights of status status offenders who have offenders and, hopefully, ensure that such children are not in been found by the court to appropriately detained. have violated such an order. Unfortunately, in some juve "Beyond Control of Parents! nile courts in Kentucky, the Schools" exception has nearly swal- Gail Robinson As background, a "status of lowed the rule. A typical sce fender" is a child who commits nario follows. A child is brought before the court on a status an act which, if committed by offense petition, for example truancy, admits to the truth of the an adult, would not be a crime. petition, often without counsel, and is ordered to attend school. KRS 600.020 52. Status of When the child fails to attend school, he is brought back be fenses include habitual tru fore the court for contempt, admits to a violation again, often ancy, habitual runaway, be without counsel and is ordered to serve time in detention. yond control of parents and beyond control of school. KRS 600.02059 "defines valid court order" as a court order KRS 630.020. Section 1 of issued by a judge to a child alleged or found to be a status of I-lB 296 amends KRS 600.020 fender: Tim Arnold to define "beyond control of a Who was brought before the court and made subject to the parents" and "beyond control order; of school." Amazingly, these terms were not previously de b Whose future conduct was regulated by the order; fined, creating numerous legal and factual problems. The c Who was given written and verbal warning of the conse "beyond control of school" definition now requires that a stu quences of the violation of the order at the time the order dent have repeatedly violated "lawful regulations for the gov was issued and whose attorney or parent or legal guardian eminent of the school" as provided in KRS 158.150 with the was also provided with a written notice of the conse petition describing the behaviors "and all intervention strate quences of violation of the order, which notification is gies attempted by the school." This definition will permit at reflected in the record of the court proceedings; and torneys for juveniles to challenge premature and meritless pe d Who received, before the issuance of the order, the full titions. Additionally, "beyond control of parents" is now de due process rights guaranteed by the Constitution of the fined to require that a child repeatedly fail to follow reason United States. able directives of his parents with resulting danger to him self or others. Thus, advocates can file motions to dismiss

14 THE ADVOCATE Volume 22, No. 4, July 2000

Certainly there is very strong claim a that an order issued to a fer if he is 14 years of age or over at the time of the offense. child who admitted to a status offense without counsel is not a This amendment is unlikely to widen the automatic transfer net valid court order since that child did not receive "the full due very far. process rights" guaranteed by the Constitution of the United States. Attorneys who represent juveniles on contempt A positive amendment to KRS 63 5.055 permits children who charges on underlying status offenses should always investi are found in contempt to be held in youth alternative centers or gate whether the order in question "valid is a court order." DJJ alternative to detention programs. Amendments to KRS 635.100 which deals with revocation of supervised placement Protections for Status Offenders permit DJJ to issue subpoenas and require an administrative Moreover, KRS 6 10.265 has been amended to provide signifi regulation which DJJ has already enacted concerning signifi cant protections for status offenders accused of violating valid cant aspects of the hearing such as burden and standard of court orders. Prior to ordering such a child securely detained, proof. the court must have a detention hearing where it does the fol lowing: MISCELLANEOUS HB 170 amends KRS 600.0201 which defines "abused and a. affirm the requirements for a valid court order were met at neglected child" to include children whose parents have failed the time the original order was signed. to make satisfactory progress on a court approved case plan, b. find probable cause the child violated the order thereby causing the child to be in foster care 15 of the last 22 months. This is relevant to juvenile court practitioners who court Additionally, the must: must frequently deal with the question of whether a child can return home and, if not, where else he can live. within seventy two hours of the initial detention, exclusive of weekends and holidays, receive an oral Various provisions in the juvenile code have been amended to report in court and on the record delivered by an grant th district court power to make permanent custody appropriate public agency other than the court or a awards in cases where the child has been neglected or abused law enforcement agency, or receive and review a by the parent. Notable among these provisions for the defense written report prepared by an appropriate public advocate are a KRS 610.125 has been modified to require agency other than the court or a law enforcement permanency hearings for children who have been out of the agency that reviews the behavior of the child and home more than a year; and b that the Cabinet no longer is the circumstances under which the child was required to make "reasonable efforts" to reunite a parent and brought before the court, determines the reasons for child when the parent is going to be in prison for at least a the child’s behavior, and determines whether all year. + dispositions other than secure detention have been exhausted or are inappropriate.

Thus, before a court may order a status offender accused of violation of a court order placed in secure detention, it must review what amounts to a PDI recommending such a penalty Tim Arnold in light of the child’s behavior. Hopefully, this will minimize Assistant Public Advocate the number of status offenders placed in secure detention for Juvenile Post Disposition Branch contempt. 100 Fair Oaks Lane, Suite 302 Frankfort, KY 40601 Otherwise, this bill clarifies what "detention" means and de Phone: 502 564-8006 fines the various types of detention facilities: intermittent Fax: 502 564-7890 holding facility, juvenile holding facility and secure juvenile Email: tarnoIdmail.pa.state.ky.us detention facility. It bars status offenders, including those fac ing contempt charges on underlying status charges, from being detained in intermittent holding facilities prior to a detention hearing. Even after a detention hearing, status offenders can Gail Robinson only be detained in secure facilities if the valid court order Branch Manager provisions are violated. Juvenile Post Disposition 100 Fair Oaks Lane, Suite 302 SB 256 Frankfort, KY 40601 This was, in general, DJJ’s "clean-up bill." It contains the Phone: 502 564-8006 first expansion of the automatic firearms transfer provision of Fax: 502 564-7890 KRS 635.0204. A child who uses a firearm "whether func Email: grobinsonmail.pa.state.ky.us tional or not" in the commission of a felony is subject to trans

15 THE ADVOCATE Volume 22, No. 4 July 2000 Sex Offenders on the Net: Kentucky’s Sex Offender Registration and Notification Statute Goes High Tech by Carol R. Camp, Assistant Public Advocate

A. INTRODUCTION tence evaluation, unless one has been provided within the past On April 11, 2000, Kentucky Governor Paul Patton signed Sen six 6 months, in which case the court may order an update of ate Bill 263 into law. Senate Bill 263 made several significant the comprehensive sex offender presentence evalua changes to the 1998 version of KRS 17.500 et seq. The new law tion." [KRS 439.2655; KRS 532.0504]. eliminates prerelease risk assessment hearings and low, moderate and high risk classifications, replacing them with presentence Criminal defense attorneys must remember that the individual risk assessments designed to determine an individual’s amenabil who undergoes a presentence evaluation will be provided with ity to treatment and the threat he poses to public safety. The law "a fair opportunity and a reasonable period of time" to contro eliminates an individual’s right to appeal negative findings con vert the evaluation’s findings only f he requests an opportu tained in a presentence risk assessment, and to bring a court ac nity to do so. [KRS 532.0458]. Note that this is significantly tion against an approved provider or local officials who improp different from former KRS 17.5704, which required the sen erly disseminate information contained in an assessment. The tencing court to hold a hearing in accordance with the Ken General Assembly has also created an online sex offender regis tucky Rules of Criminal Procedure. try that the Kentucky State Police will update and maintain.[IJ the denial of individ Stricter time limits to notify local probation and parole offices of Perhaps the most significant change is an ual’s right to appeal adverse findings. Under the 1998 version a change of address have been imposed, as well as harsher penal ties for failure to comply with the statute’s registration require of KRS 17.5707, an order designating an individual’s risk ments.f2] Additionally, registrants who are subject to any form level was subject to appeal. Now, although the court "shall of supervised release are now prohibited from living within use the comprehensive sex offender presentence evaluation in 1,000 feet of a school or licensed day case facility. determining the appropriateness of probation or conditional discharge" [KRS 532.0453], the evaluation "shall be filed This article will provide a brief overview of three of the most under seal and shall not be made a part of the court record significant legislative changes: the use of presentence evalua subject to review in appellate proceedings and shall not be tions and the denial of the right to appeal adverse determina made available to the public." [KRS 532.0458; KRS tions; the creation of the online registry; and the residency re 532.0504]. Ironically, it appears that although the criteria striction. It is the author’s belief that these three provisions are that will be used to determine whether conditional discharge is of doubtful constitutional validity. applicable in a given case is not subject to appeal, the issue of whether conditional discharge may be imposed is appealable. B. PRESENTENCE EVALUATIONS AND DENIAL OF Purvis v. Corn., Ky., ---S.W.3d --- 2000. THE RIGHT TO APPEAL Another irony is that persons who move to Kentucky from 17.5701 required the trial court to The 1998 version of KRS other states will have the opportunity to administratively ap assessment within 60 days of an indi order a sex offender risk peal a determination that they should be subjected to lifetime discharge release. After the risk assessment had been vidual’s or registration while living in Kentucky. A person who moves to completed, the trial court then held a risk assessment hearing in another state will be required to register for the Kentucky from accordance with the Rules of Criminal Procedure prior to life. However, if this person believes that the offense he com individual’s release. [KRS 17.5704]. mitted would only require him to register for ten years if he The 2000 version of the statute significantly changes this proce had committed it in Kentucky, he will be given 60 days from dure. First, KRS 17.570 has been repealed. Second, the infor the date he first registers in Kentucky to file a written appeal mation about presentence evaluations has now been placed in the with the Deputy Commissioner of the Division of Probation probation and parole and sentencing provisions of the penal and Parole. The appeal must be in writing and include a copy judgment; description of the offense; and a code. For example, KRS 439.2655 has been amended to state of the foreign a the indictment or other charging instrument describing that the purpose of presentence evaluations is to "provide to the copy of court a recommendation related to the risk of a repeat offense by the conduct constituting the offense. The Deputy Commis provided and render a writ the defendant and the defendant’s amenability to treatment, and sioner will review the information ten decision within 90 days. shall be considered by the court in determining whether to sus pend the sentence." Similarly, KRS 532.0504 now provides The denial of the right to appeal raises serious constitutional that the evaluation "shall be considered by the court in determin concerns. Sentencing decisions are generally subject to ap ing the appropriate sentence." Upon conviction of a sex crime, peal. The preferential treatment appears to raise equal protec the trial court "shall order a comprehensive sex offender presen tion and due process issues. The denial of the right to appeal

16 THE ADVOCATE Volume 22. No. 4, July 2010

also appears to violate the open courts provision of the Ken convicted sex offenders yet again for their crimes. tucky Constitution, [Section 14], as well as Section 115, which guarantees Kentucky’s citizens at least one appeal as a D. TI-fE RESIDENCY RESTRICTiON matter of right in all civil and criminal cases. Perhaps the most onerous provision of the 2000 version of KRS 17.500 et seq. Is the residency restriction, which reads C. THE KENTUCKY STATE POLICE’S ONLINE SEX as follows: OFFENDER REGISTRY _The Kentucky State Police website has been operational No registrant, as deJIned in Section 15 of this Act, who is since the 2000 version of KRS I 7.500 et seq. was signed into placed on probation, parole, or law on April II. 2000. Although the state police claim that any form of supervised release, the website only includes information provided by individuals shall reside within one thousand who have been released and who have registered since April 1,000 feet of a high school, 11, 2000, the reality is that several ,igh-risk offenders who middle school, elementary registered long before April Il, 2000 appeared on the website school preschool, or licensed as soon as it debuted. Eventually, individuals who were re day care facility. The measure p quired to register before April Il, 2000 [including those who ment shall be taken in a straight were classified as low and moderate risk under the 1998 ver line from the nearest wall of the sion of the statute], will have their photographs and identify school to the nearest wall of the ing information, including their physical descriptions, offense registrant’s place ofresidence. information, and home addresses, posted on the website. This provision raises several sig The unlimited dissemination of personal information such as nificant constitutional issues. CaroiR. Camp home addresses, without any showing that such widespread First, the terms "supervised re dissemination is necessary to protect public safety, violates an lease," "high school," "middle school," "elementary school," individual’s federal and state constitutional interests in reputa "preschool," and "licensed day care facility" are not defined, tion and privacy. [U.S. Const. amends. 5, 14; Ky. Const. arguably rendering this provision susceptible to a void for Secs. 2, 11, 14]. Kentucky’s citizens have enjoyed a long tra vagueness challenge. Do these schools include home dition of a fundamental right to personal privacy that exceeds schools? Montessori schools? Group homes? Foster homes? the protections granted by the federal constitution. Corn. v. Day care facilities for elderly citizens? The answers to these Wasson, 842 S.W.2d 487, 493-499 Ky., 1992. The Ken questions will undoubtedly be determined through litigation. tucky Supreme Court has defined this right to privacy as "the right to be let alone, that is, the right of a person to be free Second, what is a person on supervised release happens to from unwarranted publicity, or the right to live without unwar own their home, which happens to be located within one ranted interference by the public about matters in which the thousand feet of a school or licensed day care facility? If the public is not necessarily concerned." Brents v. Morgan, 221 government is mandating that this person can no longer live Ky. 765, 299 SW. 967, 970 Ky., 1927. in their home, should the government be required to compen sate the person for the taking of his private property that has The Kentucky Supreme Court has also interpreted the right of just occurred? And, third, what about an individual’s funda privacy guaranteed to all citizens of the Commonwealth mental constitutional rights to establish a home and to live in included convicted sex offenders to mean that "[i}t is not that home with his family members? Can the government within the competency of government to invade the privacy of legitimately carve Out a statutory exception to these funda a citizen’s life and to regulate his conduct in matters in which mental constitutional rights that applies only to convicted sex he alone is concerned, or to prohibit him any liberty the exer offenders? cise of which will not directly injure society." Corn. v. Camp bell, 117 SW. 383, 385 Ky., 1909. These protections in Finally, the General Assembly apparently forgot to attach a clude the right to be free from governmental disclosure of per penalty provision to this section of the statute, so individuals sonal information such as home addresses. Zink v. Corn., who allegedly violate it have no notice as to what potential Dep ‘t. of Workers’ Claims, Labor Cabinet, 902 S.W.2d 825, penalties they will face. 829-830 Ky. App., 1994; KRS 61.8781a; United Stattes E. CONCLUSION Dep ‘t. of Defense v. Fed, Labor Relations Auth., 510 U.S. con 487,501, 114 S.Ct. 1006, 1015, 127 l.Ed.2d325 1994. The 2000 version of KRS 17.500 et seq. is susceptible to stitutional challenge because it denies Kentucky’s sex offend Although "it might seem that a convicted felon could have ers the right to appeal adverse sentencing decisions based on little left of his good name, community notification...will in their presentence evaluations, subjects them to unlimited flict a greater stigma than will result from conviction alone." public notification without any showing that such notification Doe v. Pryor, 61 F.Supp.2d 1224, 1231 M.D. Ala. 1999. is necessary to promote public safety, and severely restricts Unlimited public notification, without establishing any nexus the areas in which they can live. to increased public safety, invites retribution and punishes Continued on page 18

17 THE ADVOCATE Volume 22, No. 4 July 2000 CELEBRATE FREEDOM IN OUR DEMOCRACY BY CELEBRATING DIVERSITY The 2000 Law DayAddress by Ernie Lewis, Public Advocate

Mr. Chief Justice and members of the Court, distinguished I have been asked togive afew thoughts about the role ofciti guests, new members of the bar and their families. It is a zens in a diverse democracy. great honor to be asked by the Chief Justice to deliver the turn of the century address celebrating Law Day. I am espe How to "extend the blessings of liberty to diverse people as cially pleased to deliver the Law Day address on the topic of our democracy under the rule of law changes and matures." diversity in our democracy. I am especially going to concentrate on the role oflawyers in In many ways, my being here is evidence of the commitment a diverse democracy. of the Court of Justice in Kentucky to celebrate diversity. I This discussion is especially appropriate for you on this day, am a public defender. Public defenders have in many ways the day that you are being sworn into our profession. On the been the forgotten members of the bar. Yet I have been se threshold of your first job as a lawyer. lected by the chiefjustice to deliver the address on this day set aside to recognize the importance of living under law. I have always thought that the Jlrst job ofa lawyer is the most important, because in many ways it is during the early days of Thank you Mr. Chief Justice for your raising up public de the practice of law that you putflesh to your values and vi fenders, for recognizing the importance of diversity, and for sion. your own commitment to diversity. You will learn what questions to ask. You will be tested by You are committed to diversity in our profession. You have what you see and experience. The decisions you make will spoken passionately of the need for more diversity in our jus shape the lawyer and the person that you will become. tice system. In an address delivered last year before the an nual public defender seminar, you noted that a 1997 National Today we are going to celebrate the diversity of our de Center for State Courts survey had uncovered a sharp divid mocracy by looking at several difficult issues and holding ing line between minority and majority groups in this country up lawyers who have addressed those issues. in their opinions on our justice system. You stated that, Lawyers who saw things as they were and decided to change "although I know that the judicial system aims at equal treat things. Lawyers who saw things as they could be and asked ment both systematically and on a personal basis, the fact that why not. Lawyers who looked into the eyes of the poor, the there remains even the perception of unequal treatment be oppressed, children, and did what they could to improve fore the law is disconcerting." You announced an initiative things. to work with the presidents of Kentucky’s 8 public universi Diversity is important for our democracy today ties designed to identify qualified minority students and re Diversity is an essential part of our democracy. cruit them to law school. Thank you, Mr. Chief Justice, for your commitment to doing something both to celebrate and * It is important because it adds content to the promise of the create diversity in our profession. constitution and the declaration of independence. * It is important because it adds richness and texture to our

Continuedfrom page 17 office in his new county of residence within five days of relocating to the new county. Failure to comply with these requirements is now a ENDNOTES Class D felony instead of a Class A misdemeanor.* 1. The Kentucky State Police’s online sex offender registry can be accessed at http://ksDsor.state.ky.us, or by using the search term "Kentucky State Police" to access the KSP’s home page, which includes link to the online registry. a Carol R. Camp 2. A registrant who moves to a new address within the same county Assistant Public Advocate must now notify his local probation and parole offices of his new 100 Fair Oaks Lane, Suite 302 address on or before the date he moves. A registrant who moves to Frankfort, KY 40601 a new county must provide his new address to the probation and Phone: 502 564-8006 ext. 167 parole office in his former county of residence on or before the date Fax: 502 564-7890 he moves, and give this information to the probation and parole email: [email protected]

18 THE ADVOCATE Volume 22, No. 4, July 2000

policy-making. * Today, there are signs of distress in our democracy, signs that * It continues to challenge us, helping us to avoid smugness our progress toward diversity has not yet fully succeeded. and the concentration of power in the upper class. * Those signs of distress are apparent in the encounters between * It acts as a fuel for hope for all newcomers and all those the police and citizens, they are apparent in some of our sen who feel left out of our society. tencing practices, they are apparent in the application of the * I will be discussing diversity in the context primarily of death penalty, and they are apparent in our provision of indi race. Diversity also applies to gender, class, physical and gent defense services. mental disabilities. * While it is important to celebrate diversity, it is also impor Let us turn now to these problems. But at the same time let us tant to acknowledge that ours is a democracy in mid- celebrate lawyers who are holding up the values of diversity journey, and that while progress has been made, issues re in our democracy. main that are serious challenges to our vision of America as a land of equal opportunity under the law. Police Citizen Encounters This is not a good time for citizen/police encounters. * These issues have been with us, in many instances, since the birth of our nation. Earlier this year in a legislative hearing I heard Chief Larry * We began our journey by bringing black Africans to work Walsh of the Lexington Fayette County Police Department state our soil. that the last year had been the worst in his memory for police! * Unfortunately, we began with 17th century version of racial citizen relations. profiling. Professor Terry Maclin points out at 51 Vander * A Lexington Herald Leader headline from April 25, 1999 bilt Law Review that "racial profiling" has an "ancient pedi reads: "Black drivers ticketed more often than whites." gree. Philadelphia in 1693 gave city officials power to stop and detain any black, free or slave, who was "gadding Looking elsewhere, we see far more serious and dramatic prob abroad" without a pass. South Carolina in 1696 required lems. slave patrols to search slave’s homes weekly for concealed Amadou Diallo was gunned down by 4 white weapons. By 1738, Virginia authorized mandatory searches Haitian immigrant officers as he pulled his wallet from his pants. of the homes of all blacks. police * He was said by his uncle to have loved America more than * In our Declaration of Independence and our Constitution we Americans did. jointly held out the promise of equality for all peoples while was confronted by New York City’s elite street crime unit at the same time we were in practice working the men and * He consisting of 400 undercover officers whose motto was, "we women of Africa against their will in order to enrich our the night." economy. own * In 97 and 98, the S.C.U. stopped and searched 45,000 men, * The Dred Scott case dramatically show cased the fracture in mostly African-Americans and Hispanics. our democracy, where the highest court in the land said that * Yet officers Sean Carroll, Kenneth Boss, Richard Murphy the Negro slave was not a person. and Edward McMillan were looking for a rapist but found * In 1862, Frederick Douglas said in reflecting on the justice Diallo at the front door of his apartment building. system of the time: "justice is often painted with bandaged blacks were on the jury that acquitted the four officers. eyes, she is described in forensic eloquence as utterly blind * 4 white or black, but a to wealth and poverty, high or low, On March 16, New York police shot another unarmed Haitian never blind American jus mask of iron however thick could immigrant named Patrick Dousmaid, a security guard shot after happens to be on trial.., it is not so tice when a black man an officer approached him and asked him to sell him marijuana. enemies to prove him guilty, as it is much the business of his This is the same police department where Abner Louima was prove his innocence. The reason the business of himself to brutalized with a broom handle in a police station bathroom. able doubt which is usually interposed to save the life and any liberty of a white man charged with crime seldom has The ramparts scandal in Los Angeles has shaken the criminal force or effect when a colored man is accused of crime." justice system to its core. to grow unevenly, * The promise of our democracy continued * The rampart police station was in charge of an 8 square mile with the problem of race impeding its progress. area with 30 different street gangs. It featured a unit called * Reconstruction was replaced by Jim Crow. CRASH, or Community Resources against Street Hoodlums. holding out * Our society attempted to progress separately, * They were effective. They reduced murders from 170 a year the promise to former slaves that they would achieve equal in the 1960s to only 33 in 1999. ity thereby. * But there was a dark side to this success, a dark side that con of * Since the 1950’s, we have experienced integration tradicted the ver rule of law they purported to uphold. Their schools, voting rights legislation, the civil rights movement, reign of terror was not broken until officer Rafael Perez re affirmative action. vealed that a police anti-gang unit in LA was regularly engag * Truly, our democracy is a work in progress, one which is in ing in framing innocent people by planting drugs and guns, need of persisteit reinventing and examination. I- beating up citizens, and perjuring themselves to get convic THE ADVOCATE Volume 22, No. 4 July 2000

Continuedfrom page 19 the source of a lot of these problems. In a recent note pub tions. lished in both the Search and Seizure Law Reporter and the * Officer Perez revealed that in 1996 crash had shot a 19 year St. John’s Law Review, he states that: "the Terry ruling, while old gang member named Javier Francisco Ovando, and put a correctly acknowledging the racial harm caused by stop and rifle at the crime scene in order to claim self defense. frisk, ultimately subverts 4th Amendment values. Terry’s Ovando is now paralyzed. holding was flawed because the court lost sight of the larger * He further revealed a shooting of Juan Saldana, who bled to picture it confronted: widespread use of a police practice that death while the police were comparing notes on the shoot was causing perilous friction between the police and minority 4th ing. communities and making a mockery of the Amendment * 40 convictions have already been reversed, and an addi rights of minority citizens." tional 17,000 convictions are now at risk. These are occurrences that are undermining citizens’ faith in * 70 anti-gang officers are being investigated. our police. * 20 officers have been relieved of their duties. * A recent survey of Bronx residents revealed only 11% * The first indictments have recently been returned. who thought the police treated them fairly. * A nationwide survey revealed that 44% of African- While these are dramatic signs of police/citizen mistrust, there Americans were less likely to believe the police as a result are other less dramatic but equally troubling signs that we can of recent scandals. not ignore. In Kentucky, we are lucky to have a Governor who has de * We all learned in law school that in the late 60s the supreme cided to do something about racial profiling. court approved of a Fourth Amendment encounter between * In executive order 2000-475, on April 21, 2000, Gover police and citizen short of probable cause. Terry v. Ohio. nor Patton ordered that "no state law enforcement agency * Terry... has expanded in scope considerably since that time, or official shall stop, detain, or search any person when further giving to the police the ability to seize citizens, par such action is solely motivated by consideration of race, ticularly young, minority citizens, and invade their privacy color, or ethnicity, and the action would constitute a viola in a variety of settings. tion of the civil rights of the person." that * 20 years later, in Whren v. United States the court said We can ill afford minority distrust in our criminal justice sys it does not matter whether a stopping is a pretext so long as tem. Yet in other areas, minorities cannot have faith that our the stop can be classified as a Terry stop, that is so long as system is working fairly for all citizens. One of those areas of there is a reasonable and articulable suspicion of wrong concern is racial disparities and sentencing in the criminal doing, including a minor traffic infraction. justice system. * In Illinois v. Wardlow the court stated that the police may stop someone with no evidence of wrongdoing, in a high Race and Sentencing crime area who flees from them, so called "running while In 1972, 196,000 prisoners were incarcerated in America. black." 130,000 prisoners were in jail. 1 in 625 were incarcerated. * I would be remiss if I did not note the most recent word on By 1997, 196,000 had risen to 1,159,000 in prison. 130,000 this subject. The court recently in Florida v. JL outlawed the had risen to 567,000 in jails. I of every 155 citizens is incar practice of "standing while black," that is they rejected an cerated. anonymous tip which was uncorroborated in any significant detail as being sufficient for a stop and frisk. American prisons hold more of our citizens than all the na * A recent note in the Texas Law Review revealed that from tions of the world other than Russia. 1989-1992, of 1000 motorists stopped by the Volusia * This is a more recent phenomenon. county sherifrs department in Florida, 70% were African- * In 1926, blacks were 21% of prison population. American or Hispanic. 80% of those stopped and subse * Blacks account for fewer than half of arrests for violent quently searched were also African-American or Hispanic. crimes, over half of the convictions, and 60% of the prison Yet, only 9 of the 1084 were cited for breaking any traffic admissions. law. * A 1995 report showed that blacks received prison sen * A Vanderbilt Law Review article by Professor Terry Maclin tences 10% longer than whites for the same crime in fed of Boston University recounted a Maryland study on 1-95 eral court, despite the sentencing guidelines. finding that 93.3% of all drivers are violating the law at any * In 1998, 36% of the 3.9 million people who were disen I time, that 17% of drivers were black, but that 72% of franchised temporarily or permanently as a result of their those stopped were black, and that 80% of the searches were being convicted of a crime were African-American. of blacks, Hispanics, or another minority. * I in 3 young black males in 1995 were under the control * 73% of motorists stopped and searched in New Jersey in of the criminal justice system. 1999 were African-Americans. * I in 14 adult black males is locked up on any given day.

Professor MackIm asserts that Terry v, Ohio and its progeny is These sentencing disparities include children.

20 THE ADVOCATE Volume 22, No. 4, July 2000

Conwuied Train page 2W * The effect it is having on their participation in our criminal * A recent study by the National Council on Crime and Delin justice system. quency revealed that while minorities make up 1/3 of the * The effect it is having on their families. juvenile population, 2/3rds of the 100,000 detained and * The effect it is having on their participation in our democracy. committed youth in secure juvenile facilities are minorities. Race and the Death Penalty * Blacks are 15% of the juvenile population from 10-17, but The ultimate sentence, the death penalty, also raises serious con 26% ofjuveniles arrested, 45% of those detained. cerns in its present implementation. Historically, the death pen * While l/3 of adjudicated cases involve black youths, 40% alty was a tawdry and racist practice. 455 persons executed for ofjuveniles in secure residential placements are black. rape during 1900-1950, 90% were black men. No whites were * Kentucky is the 5’ worst state in the nation in this regard. executed for raping a white woman. 2/3rds of the 288 children * In Kentucky. where minorities are 11% of the juvenile executed in this country have been black. population, minorities are 40% of the children committed to 4/6ths of the children executed during Kentucky’s history have public facilities. Black juveniles ih Kentucky have a cus been black. tody rate 5 times greater than white youth. * In Kentucky, from 1997-2000, blacks were 56% ofjuveniles All 40 children executed for rape were black. popula transferred, 5 times their proportion of the general The remnants of this racist past remain with us, hidden in some tion. troubling statistics.

This is complex. Overt racism is not the cause, and the data is Death row is holds 42% African-American, while African- mixed. Americans constitute 13% of the population. * 1990 study in New York state showed significant disparities between minorities and whites who commit misdemeanor Prof. David Baldus has published studies in the Cornell Law and property offenses. Review in 1998 revealing that race of victim and defendant con * 1990 Rand study concluded that offenders in California re tinue to be significant factors in New Jersey and Philadelphia, ceived generally comparable sentences when looking at se similar to his previous studies in Georgia showing the same verity of offense and record, with the exception of drug sen thing in the 70s and 80s. tencing. Mckles/cy v, Kemp ignored clear evidence of a pattern of race have implemented structured sentencing, which * Many states discrimination in the death penalty. judicial discretion in order to achieve a rough takes away presented in this case showed that a defendant’s equity in sentencing. * The study level of getting death were 4.3 times higher if the victim was makers in Kentucky, have rejected odds of * Many, including policy white. that policy position, fearing the solution would outweigh or * Justice Powell ruled that statistical evidence of systemic dis exacerbate the problem. crimination was insufficient basis for relief absent direct evi One reason for the high % of minorities in our prisons is our dence of discrimination by the prosecutor or jury. policy on drugs. * The majority stated that allowing such statistical proofwould * Marc Mauer in Race to Incarcerate says, "since 1980, no throw "into serious question the principles that underlie our dissent policy has contributed more to the incarceration of African- entire criminal justice system." Justice Brennan in too much Americans than the war on drugs. To say this is not to deny wrçte that the majority "seems to suggest a fear of the reality of drug use and the toll it has taken on African- justice." but as national policy, Americans and other communities; a 2!3rds of the children presently on death row are black. the drug war has exacerbated racial disparities in incarcera tion while failing to have any sustained impact on the drug Profs. Keil and Vito study of murder trials in Kentucky from problem." 76-91 conducted at the request of the General Assembly found * Blacks represent 15% of drug users but 33% of drug posses that "blacks accused of killing whites had a higher average sion arrests. probability of being charged with a capital crime by the prose * Blacks represent 18% of cocaine use, but 47% of cocaine cutor and sentenced to die by the jury than other homicide possession arrests. offenders. * In 1994, 90% of those convicted of trafficking in cocaine study found "racial disparities in the charging, were black. Yet, Africans-Americans are only 12% of the A 1990 GAO penalty after the Furman drug users in America, and 35% of the crack users. sentencing, and imposition of the death decision." These statistics should deeply concern all of us. Indigent Defense * Minorities are victimized by crime more than any other seg While not a classic element of diversity, indigent defense is in ment of our population. the same constellation of values. * We must understand what our system is doing to these com Continued on page 22 munities.

21 THE ADVOCATE Volume 22, No. 4 July 2000

LUIl?lieCi/POifl page 2/ old model for our profession. * We represent the poor. * The dominant moral issue of his time was that of the contin * We represent many minorities. ued slavery of millions of black Africans. * Our lawyers have historically not been represented in the bar * He devoted his life as president to rejecting the system of and on the judiciary. slavery, and led the nation in our greatest moral struggle. * He then set out to bring The story of providing lawyers to poor people charged with reconciliation between north and south, black and white, crimes is a familiar one to you. You have learned: and gave his life for that. * Let us * How the 6th Amendment promised the right to counsel for citi celebrate the life of Abraham Lincoln. zens in federal courts. Let us celebrate the life of Nelson Mandela, not an American, * How states unevenly provided counsel to the poor. but a lawyer. * How it was not until the l930s that counsel to poor people * He went to law school as a young man. charged with capital crimes was guaranteed. * He began to fight against a system of racial apartheid. * How it was not until the 1960s in Gideon v. Wainwright that * He said in his book "long walk to freedom" that "my career the right to counsel in all felonies was guaranteed for the indi as a lawyer and activist removed the scales from my eyes... gent accused. went from having an idealistic view of the law as a sword of * How in Kentucky there had long been a history of lawyers pro justice to a perception of the law as a tool used by the ruling viding pro bono services to the poor. class to shape society in a way favorable to itself. I never * How a group of Kentucky lawyers challenged the system of expected justice in court, however much I fought for it, and requiring lawyers to do these services without compensation, though I sometimes received it." how Kentucky court of appeals agreed in Bradshaw v. Ball, all * He was jailed repeatedly for his activism. leading to the statutory creation of the Department of Public * Eventually he was imprisoned for life. Advocacy. * Again from his book, he says that "no one truly knows a na tion until one has been inside its jails. A nation should not The creation of the Department of Public Advocacy, however, be judged by how it treats its highest citizens, but its lowest did not fulfill the promise of Gideon. ones-and South Africa treated its imprisoned African citi * The indigent defense function has been historically under zens like animals...there were many dark moments when my funded, so that 1998, it was the poorest funded public de by faith in humanity was sorely tested, but I would not and fender system in the United States. could not give myself up to despair. That way lay defeat case. * The cost per case was only $187 per and death... the campaign to improve conditions in prison * The cost per capita was under $4.90 per case. was part of the apartheid struggle.. .we fought injustice * The starting salary was $23,388. where we found it, no matter how large, or how small, and * And while some full-time prosecutors suffer from similarly we fought injustice to preserve our own humanity." low salaries, the prosecution function receives 3 times the de * He was in prison for 10,000 days until the bonds of oppres fense function, despite our providing representation in 85% of sion could hold no longer. the cases in circuit court. * His goal when he got out: "To make peace with an enemy The result is a poorly funded indigent defense delivery system. one must work with that enemy, and that enemy becomes * Consisting of highly committed but poorly paid public defend one’s partner." ers. * He became his nation’s president. He led his nation into an * Public defenders with caseloads averaging 475 new cases per extraordinary movement of reconciliation between the op year per lawyer in FY 99. pressed and the oppressor, where the oppressors asked for giveness from the oppressor. * Creating injustice every day in our court rooms across Ken tucky. * Looking back he reflects: "It was this desire for freedom of verdicts that our juries are my people to live their lives with dignity and self respect * Threatening the reliability of the frightened young reaching in over 100,000 cases each year. that animated my life, that transformed a man into a bold one, that drove a law-abiding attorney to These are all problems on Law Day 2000 that mar our celebra become a criminal.. .1 found that 1 could not enjoy the poor tion. But these problems should in no way diminish this Law and limited freedoms I was allowed when I knew my people Day, or cause us to despair regarding America’s journey. These were not free.. .the chains on any one of my people were the problems are not the last word. chains on all of them, the chains on all of my people were the chains on me. It was during those long and lonely years We have much to celebrate. that my hunger for the freedom of my own people became a We have lawyers who have committed themselves to working on hunger for the freedom of all people, white and black. these issues. Let us celebrate lawyers who have tackled these * Let us celebrate the life of Nelson Mandela, a lawyer. problems and by doing so have endorsed diversity. Let us celebrate the life ofJesse Crenshaw Let us celebrate the life of Abraham Lincoln, a lawyer, as an * An African-American lawyer from Lexington.

22 THE ADVOCATE Volume 22. No. 4. July 2000

* A teacher at KSU. * From Proximity to Death, by William Mcfeely: Steve Bright * A legislator who guided the Racial Justice Act through the has made a difference. "but the personal price is high. Al house in 1998. though Bright affects an all-in-a-day’s work approach, there * A legislator who in the 2000 General Assembly sponsored a can be no doubt that experiencing two executions in one week bill that would have stream-lined the process of restoration is wrenching. After a final appeal in the Joseph Carl Shaw of voting rights for persons released from prison, knowing case in South Carolina, Steve spent the last day with J.C., that this disproportionately disenfranchises Africans- walking with him to the execution chamber, and was there as Americans. Shaw was strapped into the electric chair and killed. Immedi * Let us celebrate the life of Jessie Crenshaw, Kentucky law ately afterward, with almost no sleeping, Bright was on a plane yer. to Florida, after another appeal had failed, to repeat the drain ing experience of staying with James David Raulerson until his Let us celebrate the life of Gerald Neal death. * An African-American lawyer from Louisville. * In 1992, 94, 96, and 98, he was the primary sponsor of the Let us celebrate the life of Dick Clay racial justice act. * Louisville lawyer with Woodward, Hobson, and Fulton. * He successfully guided this bill through the senate to its fi * KBA president in 1998-1999. nal passage. * Member of the Blue Ribbon Group. * Kentucky now stands as the only state in the nation to have a * Worked during his term as KBA President to fully fund civil law prohibiting racial discrimination in the charging process legal services. for capital crimes, and allowing for the use of statistical evi * In a speech before DPA’s 1998 Annual Seminar he promised dence as proofof racial discrimination. to devote his term as KBA President to looking at the issue of * Gerald Neal introduced SJR 86 which would have directed racial injustice in the Kentucky Criminal Justice System. DJJ, JJAC, and SEJAY to study disproportionate minority * He said, "we must not ignore the fact that out of 12,500 mem confinement. bers of the KBA roughly 150-200 are black. This is a terrible * Let us celebrate the life of Senator Gerald Neal. statistic. It is not my fault. It is not yours." It is the result of a nation where education has been undervalued for both black Let us celebrate the life of Chief Justice Joe Lambert, former and white children, and where there has not been a long tradi Chief Justice and present Justice Cabinet Secretary Robert F. tion of large numbers of black lawyers...this must change. It Stephens, Mike Bowling, John Rosenberg, Robert Lawson, will only happen-but it must happen-over time. There must Rep. Harry Moberly, Sen. David Williams, Rep. Kathy Stein, be intensive efforts by the Bar and the Judiciary to identif’ Rep. Jeff Hoover, Dick Clay, Don Stepner and other members promising African-American students at the elementary, junior of the Blue Ribbon Group. and high school levels and, quite simply, to indoctrinate them * They gathered as a group and looked at the problems with with the drive to become great lawyers." the funding of indigent defense in Kentucky. * They made an extraordinary recommendation: that Ken Closing tucky needed to fund indigent defense at a rate of $11.7 mil Ours is a big, raucous, wonderful democracy. lion each year in new general fund dollars. * They went to Governor Patton to urge him to endorse this Our profession is one which has played and continues to play a recommendation. major role in the journey of our democracy. * Governor Patton agreed to fund the BRG recommendations Lawyers have: over 4 years, and put $10 over the biennium into his budget. * Kept nations together during civil war. * This was funded by the 2000 General Assembly. * Brought reconciliation between races. * Let us celebrate the lives of these Kentucky lawyers. * Raised up issues that were being ignored by the majority * Simply put, they have looked at the problems in our Let us celebrate Steve Bright society and tried to solve them. * Danville native * UK student body president in the early 80s Flower where you are planted. Look around and solve problems. * A public defender in Washington, D.C. Change those places where diversity is not valued. And today * Established the Southern Center for Human Rights. join with ALL OF US IN CELEBRATING DIVERSITY IN * Teacher at Yale, Harvard, and Emory law schools. OUR DEMOCRACY.* * Argued Amada v. Zant in 1988 before the US Supreme Court. * Presented with the 1998 Thurgood Marshall award at the ABA Annual Meeting. * Takes a small salary $23,000 out of the money raised and recruits the best and brightest to represent death-row in mates in the south.

23 THE ADVOCATE Volume 22, No. 4 July 2000 Eliminating the Death Penalty for Juveniles The following 5 testimonies were presented before the House Judiciary Committee on February 17, 2000

been victims of horrifying child sexual and physical abuse; Eleanor Jordan and/or, alcoholism, drug abuse, and psychiatric treatment and Representative hospitalization are prevalent in the history of their parents. We 2704 Grand Ave. are not advocating or excusing a child whom commits a capital Louisville, KY 40211 offense. The Bill clearly addresses punishment, but with what we now know, what we have learned during the interim what we’ll talk about this very session regarding early brain re Currently in Kentucky we can search, and the proper early childhood and what it means to execute a 17 year old for com adulthood. It is clear in that in these kinds cases death is not House of mitting a capital offense. the punishment. Bill 311 changes that to age 18 for a youthful offender. We also If any one you were to walk into a child care center today and changed the punishment for see a room full of infants, could you tell which one might com - youthful offenders to life impris mit murder one day? Our life experiences teach us how to be onment without benefit of parole for 25 years. adults. What kind of adults we become depends on what those life experiences are. If we continue to permit juveniles to be controversial and emotionally The juvenile death penalty is both put to death, then we are in fact giving up on one of those in the pain, the anguish, and the charged. It’s impossible to know fants. I am asking you to do what is in the best interest of our faced with each and every day when a loss a victim’s family is children, and giving up on them is not. loved one has been murdered, unless it has happened to your family. I’d like to use this opportunity to go on record denounc ing the Benniton Company marketing strategy by resurrecting As a psychologist I have that kind of pain and anguish in many families across this nation, 1. Kerby Nelli, Ph.D. worked with children and and particularly two families in Louisville. However, in Ken Child Psychologist families in the Common- tucky our criminal justice system continues to practice the very 3767 Winchester Road wealth since 1974 and evalu antithesis of what we condemn the most, murder. Lexington, Kentucky 40509 ated a number of youth 859 231-8830 charged with capital offenses. Ladies and Gentlemen of this Committee a 17-year-old is still a I served on the legislative child. I could not effectively make this argument if we as legisla recommended youth be tried as adults in cases and Task Force that tures and parents have not clearly set limits on the rights repeated felonies. The youth I personally evalu our of serious or privileges of our youth. We have instructed them through often wounded and immature. I know more compre judgment to ated were legislation that they lack the maturity and sound research tells us that youth who commit serious crimes buy and hensive vote at that age, to buy, possess, and drink alcohol, to often suffer disabilities, disadvantages and victimization which contract until they possess cigarettes. Children are not allowed to further handicaps their social judgment. are eighteen. They cannot drive in this state if they have not graduated from high school or are not currently enrolled in As a parent of teenagers, two fears haunt me. The first, is my school. They must be 18 before donating bodily organs. And, memory of foolish decisions that I made or nearly made as a they must have our consent to marry. As parents, we set cur teen? There are few of us who cannot recall a choice they re fews, we give them advice, and we instruct them on proper be gret making at 16 or 17 that they would not have made at 20. havior. We correct their English, we forbid them to listen to cer The second, is an awareness that children are growing-up in a tain types of music, and see certain types of movies. The list dramatically more stressful society than we did. Competition goes on and on. for things and social status can be intense. There is often little Violence pours into our homes via the me beyond. family interaction. We guide our children through adolescence and even Advertising shapes youthful identities around appearance accountable and we dia. That is true at some point that we hold them and possessions --not the content of their character. expect sound judgment in their decision making, and a level of maturity to match or exceed our own. But, what about the chil As a society we withhold responsibilities until youth reach cer dren who not only do not have the love, the guidance, and the tain ages--16 to drive, 18 to enter contracts, 21 to consume protection that most of us provide? But, the many times those liquor. Our wisdom is matched by research on child develop children are even victims at the hands those who are supposed to ment. This research indicates that youth under 16 perform a protect them. The profile of the juvenile homicide offender most number of thinking tasks differently than adults. At age 16 or often reveals these two common characteristics. They are more 17 most, but not all, youth can solve many thinking tasks like likely to be psychologically disturbed, because often they have adults. But, we recognize the process of balancing limited life

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experience with pressures and emotions in order to make good great start. decisions --the process we call judgment--is more complex than solving research thought problems. The newly acquired It’s amazing that the Supreme Court and Thompson v. Okia thinking skills of youth are not tested under such stress or hoina held that executions of offenders under 16 was unconsti complexity. We pay a premium for the demonstrated poor tutional. And then, almost a year later, they came back in judgment of youth when we insure our cars for our teenaged I Stanford v. Kentucky and held that it was a good standard of children. While we recognize the limitations of those under decency for the state to execute 16 and 17 year olds. It is 18 in so many ways, we suspend this wisdom when a youth equally ironic that in January of this year, the President of the commits a serious offense. That is why we have states which United States hailed an important advance in human rights allow the death penalty for youth, but prohibit their getting when the United States agreed with the United Nations Con tattoos. vention on the Rights of the Child in raising the standard for the age that a young man or woman can go to war. So, the If we can remember poor judgments we made in our teens, we Convention said that no person under the age of 18 should can also remember that we usually "knew better." We knew really be allowed to fight in a war. Yet the same nation, our enough to be held responsible on more than a young child’s great nation, continues to allow the execution of 16 and 17 level. There are many serious consequences for youth in the year olds. adult system short of death. A youth of 17 only has about 12 years of his life within ready access of his memory. Twenty Statistics and data clearly prove that the juvenile death penalty five years without parole would constitute double of what he is blatantly racist. Over two-thirds of the 357 juveniles exe knows as a lifetime. cuted in this nation have been African-American. And that cer tainly fits in with the fact that even in Kentucky we have a dis We can all experience such rage that can cause us to wish for proportionate number of minorities in general in the juvcnile the death of another. Such rage allows us to see people nar justice system, just like there is in the adult correctional sys rowly--only in terms of their offense against us. It is in such a tem. Now, one of the things we pride ourselves on in Kentucky stereotyped and detached way that criminals often see the rest is having a real good juvenile justice system. We came into of us when they offend. In this sense the revenge of the death existence, this Department, on the heels of federal consent de penalty diminishes us all, the more so, the younger and more cree. We have worked very hard with the support and ap vulnerable the persons upon whom we inflict it. proval of the legislature and our Governor to change our juve nile justice system. We have imbued in our statutes the fact One message prevalent in our society that facilitates youth vio that we are a treatment and rehabilitated-oriented system. We lence is simply that violence solves problems. In our decisions imbued very clearly the parent’s patree philosophy, which regarding the death penalty for juveniles we have the power to came out of England for this country in terms of trying to do say yes or no to that message. things in the best interest of the child.

We do some great things here in terms of youngsters under Ralph Kelly Thank you Mr. Chairman and Ladies and eighteen, unlike many of our sister states. All juveniles in this appreciate Commissioner Gentlemen of the Committee. I state go through the juvenile justice system no matter what the opportunity to test before you on Juvenile Justice jJ5’ crime they committed if they are under the age of eighteen. what I think is a very important piece of While most of our border states and many other states in the proposed legislation: nation transfer juveniles as young as 13 to the adult correc tional system where they are housed. We serve all types of Century some one hundred years When we began our 20th kids in the juvenile justice system with the goal being treat nation on earth, with the exception of Costa ago, almost every ment and rehabilitation. Almost all of our other statutes begin Venezuela, allowed the execution of convicted mur Rico and to draw a distinction between young people and adults. You derers, including those under 18. By the end of the century, the unless you are over 18. You can’t drink only re can’t buy cigarettes list has dramatically changed to the extent that the until you are 21 and a host of other kinds of things. It almost for youngsters under the gimes that allowed the death penalty seems just unusual that we look at age of adulthood in one Nigeria, Saudi Arabia, and, of age of 18 was Iran, Pakistan, fashion and then we look at in another fashion. There is no our own great country the United States of course, 23 states in question that we deal with some very difficult and dangerous America. young people in our state. And some of our young people are the last century, we executed four men who were very sophisticated criminals and some have committed some As we closed serves any useful convicted of murder when they were under the age of 18, three very horrific crimes. But, I’m not sure if it now in the juvenile justice were seventeen and one was sixteen. As we opened the new purpose if the eleven young people January, we’ve already executed two who commit system who committed horrific crimes of murder and other century in sure how ted murder when they were seventeen and one who committed wise would be under the death penalty. I’m not even on their rehabilitation murder when they were sixteen. So, I guess we could say if we as a Department would be focusing you are on whichever side of the coin, the nation is off to a Conlinued on page 26

25 THE ADVOCATE Volume 22, No. 4 July 2000 if they were condemned individuals. How do you rehabilitate get away with merely having their hands slapped. somebody, how do you treat somebody in terms of trying to help them focus on making a better life in the future if the state We claim to a child-oriented nation .- and state - but the juve is going to take that life away? nile death penalty contradicts this claim. * Internationally, only five other nations sentence juveniles I commend you ladies and gentlemen for all the things that you have done to improve the juvenile justice system in this state. I to death. think the passage of this legislation out of the Committee * Nationally, a minority of states allow the death penalty for would take us one step further in making Kentucky a model juveniles. type juvenile justice program. It seems that we would like to believe that the death penalty is

the ultimate threat and deterrent to crime - but like almost all

parents will admit - kids just don’t work that way. Debra Miller My name is Debra Miller and Executive Director I am the Executive Director of * Children are impulsive and reckless by nature. Kentucky Youth Advocates. Kentucky Youth Advocates * Children seem to have an inherent belief in their own KYA is a child advocacy or invincibility and immortality - despite any presentation of ganization founded in 1975 evidence to the contrary. and dedicated to creating policies and conditions that recog nize children’s rights and serve their best interests. KYA is joined by a number of organizations who represent the mental health professions, child advocacy groups, racial jus We were very involved in the work in the late 70’s and early tice organizations, and religious organizations in supporting 80’s to revise Kentucky’s juvenile statutes. Eventually the HB 311. There is a complete listing of endorsing groups in Kentucky Unified Juvenile Code was completed and passed by the blue pamphlet you have. the General Assembly. It was hailed nationally as model juve crime committed by juveniles but we see nile law - clearly placing Kentucky in the forefront of states We don’t condone committed to the treatment and rehabilitation of youth. Since no useful purpose in the death penalty. Its use is one more time that time, we have built on this commitment. adults say to kids, "do as we say, not as we do." Kentucky Youth Advocates urges you to support House Bill 311. 1-lB 311 gives the General Assembly another chance to be a leader - and do what we believe is the right thing for chil dren - by eliminating the death penalty for juveniles.

Kentucky has executed six persons for crimes committed as juveniles and two more individuals are on death row today. I am personally not in favor of capital Ernie Lewis punishment but if we are going to have Public Advocate As we can see from today’s meeting, the death penalty is a vis the death penalty in Kentucky, I encour ceral issue - and even more so when the talk turns to juveniles. age us to have a very carefully drawn statute. The ABA looked at the death penalty in 1997 across Yes, the crimes behind the sentences may be horrendous. America and said there are four major problems: I the states These crimes certainly call into question the general concept allow the execution of the mentally retarded; 2 there are dis of the innocence of youth. Yet we know that those executed proportionate numbers of people of color on death row; 3 the for crimes committed as children share some common charac death penalty is arbitrary since we are not funding indigent teristics: defense, so people do not have a proper representation, and 4 we still allow the death penalty for children in this country. * They are likely to have mental retardation or mental illness. Kentucky has gone a long way toward carefully drawing a * They are likely to have histories of sexual or physical capital statute. In 1992, you addressed the first question and abuse. eliminated the death penalty for the mentally retarded. In * They have been victimized by lives of poverty and poor 1998, you addressed the problems of race and passed the Ra education. cial Justice Act. This year, the problem of indigent defense is * And in a further irony of their marginalization, they are being addressed by the Governor’s recommendation of $10 often poorly represented in trial. million additional funding for indigent defense. Question four remains, we still allow the death penalty for children.

We can - and we should - hold juveniles responsible for crimes committed. HB 311 would allow life without parole for I encourage the General Assembly to carefully craft a narrowly 25 years and by pass the court review at 18 when juveniles are drawn statute and pass HB3 11. transferred from Department of Juvenile Justice to adult Cor rections custody. We don’t need to worry that juveniles will

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Breaking Through: clients may be affected by symptoms of depression, mental retardation, paranoid personality disorder, Communicating And Collaborating bipolar disorder, Schizophrenia, and substance de with the Mentally Ill Defendant pendence. by Eric Drogin, J.D., Ph.D. Readers will find frequent references to the Diagnos tic and Statistical Manual of Mental Disorders DSM-IV. [1J While some but not all of the diag The more elaborate our means ofcommunication, nostic criteria are identified for each of the disorders listed the less we communicate. supra in considerably abbreviated form, these are not in --Joseph Priestley 1733-1804 tended for use in "ruling in" or "ruling out" the presence of a specific mental illness. Rather, they provide some very gen INTRODUCTION eral examples of the sorts of actions, thoughts, or feelings de fense team members may encounter when Functioning within a system inured dealing with men to spending hundreds of tally ill clients. dollars an hour on specialized mental health expertise, many criminal defense attorneys adopt a deferential, even disingenu DEPRESSION ous manner when compelled to comment on the behavior of their own clients: "What do I know? I’m not a psychologist!" According to the DSM-IV, persons suffering from a Major De pressive Episode may display: For expert witnesses to wish they had a dollar for every time 1 depressed mood; they heard this would be to ignore the fact that, of course, they 2 diminished interest or pleasure already do. Many dollars. 3 weight loss; 4 sleep disturbance; As personally and financially gratifying as this approach may 5 agitated or slowed movements; be for the forensic psychological community, one inescapable 6 fatigue or loss of energy; fact makes it less than ideal for attorneys and the persons they 7 feelings of worthlessness or guilt; attempt to defend: 8 concentration problems or indecisiveness; and 9 thoughts of death or suicide. [2] No matter what firm you join to say nothing of working in indigent defense systems, there will never be enough money During a client interview, depressed defendants may be list to run every mental health aspect of each case by a mental less, apathetic, and seemingly disinterested in the details of health expert or consultant. their representation. Despite the fact that important decisions must be made as soon as possible, they can adopt a frustrat This may never be more evident than during the initial phases ingly indifferent attitude about counsel’s need for information of representation in cases where competency and sanity issues and advice in the face of rapidly approaching deadlines. Of are off the table and therefore, no funded mental health exper ten, the depressed defendant may dissolve into tears, seem tise is forthcoming, important deadlines are looming, and ingly incapable of taking an active role in his or her own de quite simply, you and your client are incapable of working to fense. gether. For these and other reasons, the defense team may wonder What is frequently overlooked in such cases is that the defense whether such persons are actually competent to stand trial. team already has considerable expertise at its disposal. Attor Attorneys sometimes conclude - erroneously - that a client neys, investigators, and other staffpersons have their own var must exhibit psychosis or mental retardation in order to be in ied life experiences upon which to draw. In addition, in a competent. In fact, some severe forms of clinical depression somewhat different way from their mental health colleagues, can, in particular, render criminal defendants incapable of par they are themselves students and, in the courtroom, teachers ticipating rationally in their own defense. [3J of human nature, whose stock in trade already consists of iden tifying, explaining, and normalizing the behavior of persons Once the issue of trial competency has been resolved, the de from every walk of life. fense team may still be left with a client whose collaborative abilities are minimal at best. Key to establishing a working The purpose of this article is not to turn defense team mem relationship with such persons is understanding what cognitive bers into diagnosticians or psychotherapists, but rather to en behavioral therapists have termed the cognitive triad: [4J hance their ability to communicate and collaborate with cer The cognitive triad consists of three major cognitive patterns tain types of mentally ill criminal defendants. Common traits that induce the patient to regard himself his future, and his modes interaction are identified where and recommended of Continued on page 28

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Continuedfrom page 27 conclusion with far-reaching implications. experiences in an idiosyncratic manner 3 Catastrophic thinking. An extreme example of overgen The JIrst component of the triad revolves around the patient’s eralization, in which the impact of a clearly negative event negative view of himself He sees himselfas defective, inade or experience is amplified to extreme proportions, e.g., "If quate, diseased, or deprived. He tends to attribute his un I have a panic attack I will lose all control and go crazy pleasant experiences to psychological, moral, orphysical de or die." fect in himself in his view, the patient believes that because 4 All-or-none black-or-white; absolutistic thinking. An of his presumed defects he is undesirable and worthless. He unnecessary division of complex or continuous outcomes tends to underestimate or criticize himself because of them. into polarized extremes, e.g., "Either I am a success at Finally, he believes he lacks the attributes he considers essen this, or I’m a total failure." tial to attain happiness and contentment. 5 Shoulds and musts. Imperative statements about self that dictate rigid standards or reflect an unrealistic degree of The second component of the cognitive triad consists of the presumed control over external events. depressedperson ‘s tendency to 6 Negative predictions. Use of pessimism or earlier experi interpret his ongoing experi ences of failure to prematurely or inappropriately predict failure in a new situation. Also known as "fortune tell ences in a negative way. He sees the world as making exor ing." bitant demands on him and/or 7 Mind reading. Negatively toned inferences about the intentions, presenting insuperable obsta thoughts, or motives of another person. Labeling. undesirable characterization a person or c/es to reaching his life goals. 8 An of event, "Because failed to be selected for ballet, I He misinterprets his interac e.g., I tions with his animate or in am afailure." animate environment as repre 9 Personalization. Interpretation of an event, situation, or senting defeat or deprivation. behavior as salient or personally indicative of a negative These negative misinterpreta aspect of self. selective Undesir tions are evident when one 1OSelective negativefocus abstraction. implications are observes how the patientnega able or negative events, memories, or Eric Drogin - at expense recalling identifying other, focused on the of or tively construes situations when more neutral or positive information. In fact, positive in more plausible, alternative interpretations are available. The formation may be ignored or disqualified as irrelevant, depressed person may realize that his initial negative inter atypical, or trivial. pretations are biased f he is persuaded to reflect on these less negative alternative explanations. In this way, he can come to 1 1Cognitive avoidance. Unpleasant thoughts, feelings, or realize that he has tailored the facts to fit his preformednega events are misperceived as overwhelming and/or insur tive conclusions. mountable and are actively suppressed or avoided. 12Somatic misfocus. The predisposition to interpret inter of The third component of the cognitive triad consists of a nega nal stimuli e.g., heart rate, palpitations, shortness tingling as definite indications of tive view of the future. As the depressedperson makes long- breath, dizziness, or events i.e., heart attack, suffoca range projections, he anticipates that current dfjlculties or impending catastrophic suffering will continue indefinitely. He expects unremitting tion, collapse, etc.. 61 frustration, and deprivation. When he considers hardship, of undertaking a spec/Ic task in the immediate future, he expects Realizing the source and nature of these irrational patterns determining the best tofaiL fSJ thinking will help the defense team in ways to impart and obtain critical information in anticipation of pending hearings and motions. In other words, the depressed criminal defendant is not merely so "sad," "miserable," or "unhappy" that a preoccupation with emotions is crowding out the desire to assist counsel in These clients should never be told that they are not feeling these asserted that developing a viable defense to his or her current charges. what they claim to feel; nor should it simply be perceptions and predictions con Rather, clinical depression is inseparable from an entrenched they are "wrong" about their case at hand. negative of one’s self, situation, and prospects that interferes cerning the logically with the desire and/or ability to interact effectively. Instead, counsel may elect to: Cognitive therapists have developed a series of labels to de 1 Acknowledge the client’s current feelings. scribe these "Common Patterns of Irrational Thinking": 2 Point out that counsel has worked with many persons in 1 Emotional reasoning. A conclusion or inference is based similar situations, with similar feelings, while owning that on an emotional state, i.e., "lfeel this way; therefore, I am this is not, in and of itself, expected to make the client feel this way." better. 2 Overgeneralization. Evidence is drawn from one experi 3 Observe that counsel has managed not only to work with, ence or a small set of experiences to reach an unwarranted but to help other persons who have felt the same way.

28 THE ADVOCATE Volume 22, No. 4, July 2000

4 Indicate that counsel sees many aspects of the case a cer sons as if they are children. According to core training resources tain way, and understands how and why the client may in the field of psychiatry: currently see some aspects differently. 5 Patiently review some of the issues, not arguing with the [TJhe interviewer should not he guided by the patient’s ,neni’al client, but gently noting differences of opinion as they age, which cannot fully characterize the person. A mildly re arise, suggesting that the client may come to view some tarded adult with a mental age of 10 is not a 10-year-old child. perspectives differently upon later reflection. When addressed as f they were children, some retarded people 6 Reassure the client that counsel will revisit these issues becotnejustflably insulted, angry, and uncooperative. Passive with the client when there has been some time for both and dependent people, alternatively, may assume the child’s parties to consider them at length. role that they think is expected of them. In both cases, no valid [inJbrmationJ can he obtained. Ill I While detailed consideration of additional measures is beyond the scope of this article, it is assumedjhat counsel will attend The defense team should also remain aware that they are not the to such usual issues as monitoring for suicidality, obtaining only persons interested in obtaining information from the client clinical assistance where indicated, and documenting pro with mental retardation: longed difficulties in communication and collaboration which may indicate that competency concerns have resurfaced. Keep in mind that the defendant may be unfamiliar with the jail setting and will find themselves wanting to talk to anyone. If MENTAL RETARDATION possible, counsel should obtain a court order to prevent the prosecution from contacting the defendant. Persons who have received a diagnosis of mental retardation will typically exhibit: Many prosecutors send police personnel, investigators, or psy 1 significantly low intellectual functioning; and chologists into the jail to interview the defendant. In most cases, 2 impairments in adaptive behavior. 171 a defendant with mental retardation will talk to these people, and may makefalse statements and admissions These difficulties must begin before the person reaches the age of 18. The Intelligence Quotient "l.Q." range associated People with mild mental retardation ofien have signUlcant d?fJl with this condition is typically 70 or below, although certain culty coping and adapting. Skills such as communication, so test-specific and other considerations may result in such per cialization, and functional academic abilities usually are quite sons having l.Q. scores that are several points higher. [81 limited. These skill deficits limit their ability to interact with their lawyer and to fully understand the signflcance of their Once the presence of mental retardation has been determined, Miranda rights. interviewing these criminal defendants takes on a singularly diagnosis-specific aspect. Mitigation experts have maintained This is especially problematic because defendants with mental that: retardation may waive their rights to remain silent or to speak with a lawyer, in favor of talking with interrogators to please People with mental retardation tend to think in concrete and them. Given this tendency, characteristics such as acquiescing understand mean liberal terms. As a result, they may not the to those in authority may hinder efforts to learn the truth. [12] ing of such concepts as plea bargain and waiver of rights. One of the safest ways of communicating with people with Because of the likely presence of suggestibility, counsel must be mental retardation is to use simple words in open-ended ques careful not to "lead" criminal defendants into misleading state tions. Always ask questions that require them to explain their ments about past or present behaviors, feelings, and attitudes. reasoning. if possible, have present a social worker or an The same dynamics that defense attorneys are concerned will individual who is close to the defendant to assist him or her in impair a client’s Miranda protections may also burden the de interpreting what is being said and asked and to ensure that fense team with bogus information that will frustrate attempts at the defendant understands the process. [91 competent representation. [13]

This perspective has been echoed in recommendations offered PARANOID PERSONALITY DISORDER by clinicians, as well: A primary concern in working clients with a paranoid personality Informal clinical interviews with the client when possible disorder is that they not be confused with those suffering from a and informants who know the client well, such as parents, full-blown Delusional Disorder characterized by "non-bizarre teachers, and day program supervisors, typically initiate the delusions" that nonetheless represent a break from reality. [14] diagnostic process and precede structured assessment proce dures. 1101 Persons with the contrastingly non-psychotic, albeit clinically significant paranoid personality disorder may: Although counsel will attempt to converse at a level most 1 suspect that others are exploiting, harming, or deceiving likely to be understood by the defendant with Mental retarda tion, this should not be taken as advice to speak with such per- Continued on page 30

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oni/nue/ Iron, page 29 tively correcting the client ‘s misunderstandings and misper them; ceptions as they occur, and openly acknowledging any lapses 2 doubt the loyalty of their acquaintances; that do occur. 3 avoid confiding in others; 4 perceive harmless behaviors as threatening; It is important for the therapist to remember that it lakes time 5 bearagrudge; to establish trust with most paranoid individuals and to re 6 misinterpret neutral remarks as character attacks; and frain from pressing the client to talk about sensitive thoughts 7 suspect spouses or partners of infidelity. 1151 orfeelings until sufficient trust has been gradually been estab lished Predictably, building a professional relationship with such cli ents is fraught with complications. While criminal prosecu Collaboration is always important ... in working with para tions occur in the context of an adversary system, defendants noid individuals. They are likely to become intensely anxious with a Paranoid personality disorder may seem unsure about or angry f they feel coerced, treated unfairly, or placed in a which side of that system counsel is actually on. Any indica one-down position tion that the defense team is less than fully prepared and sup This stress can be reduced somewhat focusing initially on portive is likely to be interpreted as an expression of indiffer by the least sensitive topics ... and by discussing issues indirectly ence, a heedless slight, or even an outright declaration of con i.e., through the use of analogies or through talking about tempt. how ‘some people" react in such situations, rather than Once again, cognitive behavioral therapists have provided the pressingfor direct self-disclosure. 1181 most cogent description of the issues at play in developing a Patience is not the only virtue taxed interacting with such professional understanding with such individuals: by clients. Somewhat counterintuitively in comparison to how they at least attempt to deal with many other defendants, mem The first issue ... is establishing a working relationship. This obviously is no simple task when working with someone who bers of the defense team must also be prepared to downplay assumes that others are likely to prove malevolent and decep the degree of shared insight, closeness and identification they tive. Direct attempts to convince the client to trust the thera express with the persons they attempt to assist in these cases: pist are likely [to] be perceived by the client as deceptive and - interpreta therefore are likely to increase the client ‘s suspicions. [O]ver zealous use of interpretation especially tion about deepfeelings of dependence, sexual concerns, and The approach that proves most effective is for the therapist to wishes for intimacy - sign,fIcantly increase [these] patients’ openly accept the client’s distrust once it has become appar mistrust ent, and to gradually demonstrate his or her trustworthiness At times, patients with paranoid personality disorder behave through action rather than pressing the client to trust him or so threateningly that therapists must control or set limits on her immediately. [16] their actions. Delusional accusations must be dealt with real istically but gently and without humiliating patients. A similar dynamic comes into play when the would-be col laborator is an attorney or investigator instead of a therapist or Paranoid patients are profoundly frightened when they feel mental health counselor. Overt attempts at ingratiating oneself that those trying to help them are weak and helpless; there are likely to be interpreted quite negatively, while steadily fore, therapists should never offer to take control unless they building a track record of responsiveness and reliability is are willing and able to do so. 1191 likely to advance the professional relationship significantly. SUBSTANCE DEPENDENCE After all, individuals with a paranoid personality disorder are characterologically inclined to be suspicious and distrustful, According to DSM-IV, persons who have become dependent alcohol, cocaine, but this need not be dominant substance or conclusion of every on any of a range of substances including interpersonal contact. This having been said, however, de and others may share several of the following experiences: 1 tolerance needing more to become intoxicated, or not fense team members should remain aware that setbacks are getting as intoxicated with the same amount; likely to occur from time to time, now matter how assiduously 2 withdrawal symptoms; the trust relationship may have been cultivated. [17] 3 consuming more, and for a longer time, than intended; Regarding additional details of fostering collaboration and 4 failed attempts or persistent desire to minimize consump communication with these defendants over time: tion; 5 increased time spent in obtaining or recovering from the It is then incumbent on the therapist to make a point ofprov substance in question; ing his or her trustworthiness. This includes being careful 6 giving up social, occupational, or recreational activities; only to make offers that he or she is willing and able to follow and through on, making an effort to be clear and consistent, ac 7 continuing to consume despite knowledge that there is a problem. [20]

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Continuedfrom page 30 understanding of the addicted client’s comprehensive legal situation. These persons often lead chaotic personal lives, are Several inquiries have proven useful in a very basic, general likely confused, and frequently have difficulty with trust is screening for the presence of alcoholism. One of the most sues, in a fashion seemingly similar to persons with paranoid simple and straightforward of these is the CAGE question personality disorder. [25] It is a good idea to go down a full naire: list of potential problems with these persons, conveying at all CAGE provides a mnemonic device for the exploration of the times the understanding that these are situations which might following areas: Cut down: "Has a doctor ever recom occur with anyone, and that it is standard procedure to make mended that you Cut back or stop the use of alcohol?" An sure that "all the bases are covered." [261 noyed: "Have you ever felt Annoyed or angry ‘f someone comments on your drinking?" Guilt: "Have there been times Comprehension difficulties are a significant issue in these when you ‘ye felt Guilty about or regretted things that oc cases. [27] While deficits are typically not as profound nor as curred because of drinking?" Eye-opener: "Have you ever pervasive as those encountered with criminal defendants with used alcohol to help you get started in the morning; to steady mental retardation, they may still provide a substantial barrier your nerves?" 1211 to collaboration and communication: Simply put, the addicted client may not understand what you Often the substance-dependent defendant is first encountered are saying. He or she may be sleep deprived, hung over, or in the throes of withdrawal from chronic intoxication. The acutely intoxicated. There may be lingering effects ofchronic strategy best is to reschedule planned interviews, seeking a substance abuse, and even permanent organic impafrment. It continuance on necessary. this basis if Not only will question follows that the addicted client who has been technically so ing at this juncture provide questionably reliable information berfor some time may still have sign jficant d[fIculties with and planning; it also engender may considerable resentment on memory and logicalprocessing. the part of clients who will find it difficult to forget that de fense team members chose such an inopportune time to put These deficits may be difficult to detect atfirst, as long as the them through their paces. addict can keep interactions at a social level that does not "Withdrawal" is likely to be marked by considerable pain and require complex reasoning psychological disturbance. [221 This is distinct from the In order to serve the client better, attorneys can also make a longer-term process of "recovery," which involves, among point of cycling back to earlier conversations, revisiting spe other aspects, the gradual return of the central nervous system cfIc comments and information to make sure that clients have to an approximately pre-morbid level of functioning. In the beenfollowing along. [S]trategic planning shouldproceed in case of long-term alcohol dependence, this component of a logical and stepwisefashion ... [28] "recovery" is generally estimated to take between 9 and 15 months. 1231 The trademark attitude and primary psychological defense of the addict is denial. [29] Defense team members should not While the incorporation of direct interviewing assistance from be surprised when addicted clients resolutely refuse to ac family members has been identified as a useful technique in knowledge aspects of their cases which would seem readily developing a relationship with defendants with, for example, apparent to anyone else: mental retardation, it may become a "two-edged sword" in working with substance-dependent criminal defendants: This situation can complicate the attorney-client relationship from its inception. Necessary data gathering is hampered Addicts have most likely been hiding thefr problems from from the beginning. Attorneys are unsure what clients cannot other family members for a long time, perhaps years. They remember, and what they are simply unwilling to recall. What may have been drainingfamily finances to support their hab might appear to be evasiveness or even outright duplicity on its, often unbeknownst to anyone else. In some cases, this has the part of addicts may be explained by their ingrained inabil gone on with the knowledge of other family members, who ity to face certain aspects oftheir past and present lives. have chosen to ignore the problem. Patience is the key in dealing with this situation. That is not When the "truth comes out" in the course of litigation, feel the same thing as acquiescence; clients need to learn as early ings of guilt and betrayal on both sides add fuel to already as possible that attorneys have duties that they must perform, simmering resentments. Children reflect on how they have and information that they must obtain. To the extent possible, been deprived in the service of someone else ‘s addiction, or attorneys need to schedule sufficient time to draw out the ad idenq,5’ with a neglected or abused parent. Spouses express dicted client and work through areas of obvious denial. The additional distress at the thought of how their children ‘s up assistance of a therapist consultant may be particularly useful bringing and educational prospects were impaired as a result at this juncture. 1301 of a partner’s addictive behavior. 241 Defense team members need to take special care to gain a full Continued on page 32

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Continuedfrom page 31 The patient has to be prepared gradually and eventually be SCHIZOPHRENIA told the truth when he has already anticipated in his own Criminal defendants who have received a DSM-IV diagnosis of mind its possibility and the methods of coping with it. 34J schizophrenia will often endure some or all of the following: 1 delusions; Does this sound complicated? Somewhat internally contradic 2 hallucinations; tory? More than someone would want to attempt on his or her 3 disorganized speech; own, or even with the assistance of a group of professional 4 disorganized or catatonic behavior; and colleagues? Schizophrenia is a diagnosis apart, involving such 5 social or occupational dysfunction. 3IJ high stakes and potentially volatile reactions that extreme cau tion is warranted when considering any significant interaction. Clearly, an active phase of this disorder will probably render a client incapable of effective collaboration and communication, Guidance materials for psychiatrists further underscore this likely make him or her incompetent to stand trial, [32] and per perspective, while lending some practical tips for working haps have prevented him or her from possessing the requisite with Schizophrenic clients that generalize to other professional mental status for criminal responsibility. [33] endeavors:

In those cases where psychotic symptoms are currently inactive, The relationship between clinicians and patients differs from and thus at least temporarily in "remission," the defense team that encountered in the treatment of nonpsychotic patients. may be able to obtain useful information from criminal defen Establishing a relationship is often chfficult. People with dants, in addition to forming at least the basis for a working pro schizophrenia are often desperately lonely, yet defend against fessional relationship. closeness and trust; they are likely to become suspicious, anx ious, or hostile or to regress when someone attempts to draw Similar to difficulties encountered with persons diagnosed with a close. paranoid personality disorder, those subject to the vicissitudes of Therapists should scrupulously observe a patient’s distance Schizophrenia may be prone to overreact to seemingly innocuous and privacy and should demonstrate simple directness, pa remarks and comments, even as more florid aspects of ill this tience, sincerity, and sensitivity to social conventions in pref ness are not readily apparent. From a classic reference designed erence topremature informality and the condescending use of for the families of persons with schizophrenia: first names. The patient is likely to perceive exaggerated warmth or professions offriendship as attempts at bribery, Interpretations of this kind may indeed increase the anxiety of manipulation, or exploitation. the patient and hasten a new psychotic episode ... [h]owever, distance is not desirable either and does not promote rehabilita In the context ofa professional relationship, however, flexibil tion ity is essential in establishing a working alliance with the pa tient. A therapist may have meals with the patient, sit on the A question that comes up quite frequently is the following: floor, go for a walk, eat at a restaurant, accept and give gfls, Should the recovering patient be told the truth when some terri play table tennis, remember the patient’s birthday, orjust sit ble event sudden death or the diagnosis of a serious disease silently with the patient. occurs The major aim is to convey the idea that the therapist is trust Certainly we do not want to lie to patients or anybody else. worthy, wants to understand the patient and tries to do so, However, there is a good time and a bad time for telling the and has faith in the patient’s potential as a human being, no truth. State hospital psychiatrists used to insist that no ill effects matter how disturbed, hostile, or bizarre the patient may be at have ever resultedfrom the revelation of bad news. They were the moment. 1351 referring to a group ofpatients who, in addition to being ill, of ten lived in a state ofalienation aggravated by the environment. BIPOLAR DISORDER Although it is, of course, clinically distinct from other forms of Many of these patients were not able to express their emotions. mental illness, bipolar disorder calls for an interpersonal ap An apparent insensitivity should not be interpreted as impervi proach that mirrors to a considerable extent the adaptive pro ousness. Even a catatonic schizophrenic who seems insensitive cedures employed by defense team members when encounter and immobile like a statue feels very strongly. A volcano of ing clients with other psychiatric conditions. emotions is often disguisedby his petrfled appearance. Persons with bipolar disorder may be prey to dramatic fluctua With the recovering schizophrenic we find ourselves in a com tion between manic episodes of seemingly unrestrained agita pletely ... different situation. He is very sensitive and would not tion and energy on the one hand, and almost catatonic periods forgive relatives for not telling him the truth. And yet knowing of depression on the other. [361 the truth may be detrimental to him when he is still unstable and struggling recover still to fully his mental health. Similar to overtly psychotic phases of schizophrenia and pro foundly debilitating manifestations of major depression, the

32 THE ADVOCATE Volume 22, No. 4, July 2000 criminal defendant with bipolar disorder may present as in 8. Id. at 39-45. See cilso Gerald Koochcr ci a!.. /‘svchologists competent to stand trial or lacking in criminal responsibility Desk Reference 89-90 1998. 1371 when experiencing the extreme manifestations of either 9. Denis Keyes. William Edwards, & Timothy Derning. affective component of this illness. "Mitigating Mental retardation in Capital Cases: Finding the lnvisible’ Delèndant,’ 22 Mental & Physical Disability L. The defense team may be able to obtain important factual ma Rep. 529-39, at 529 1998. terial, and forge some degree of cooperative bonding, between 10. Johannes Rojahn & Marc Tasse, ‘Psychopathology in Mental retardation," in Manual of Diagnosis and Professional Prac more dramatic changes in the client’s overall mood and ac tice in Mental retardation 147-56, at 149 J. Jacobson & J. companying behavior. In general, this is more likely to occur Mulick eds., 1996. when a client is less depressed and more energetic, although a II. Harold Kaplan & Benjamin Sadock, Synopsis of Psychiatry counterproductive irritability may characterize the later phase 1148 8th ed., 1998. of his or her illness. 12. Keyes, Edwards, & Derning, supra note 9, at 53 1-33. 13. See John Dattilo, Gail Hoge, & Sharon Malley, "Interviewing Key to the success of such encounters is a recognition that pro People with Mental retardation: Validity and Reliability gress will be episodic. Considerable ground is likely to be lost Strategies," 30 Therapeutic Recreation 1 163-79 1996; Su when a fully realized manic episode eventually ensues. Con san Elias, Carol Sigelman, & Pamela Danker-Brown, will likely periods during which the pa "Interview Behavior of and Impressions Made by Mentally trastingly, there be Retarded Clients," 85 Am. J. Mental Deficiency 53-60 1980; tient’s mood appears to balanced that no mental illness is read and Carol Sigelman et al., "When in Doubt, Say Yes: Acqui ily apparent. 1381 escence in Interviews with Mentally Retarded Persons," 19 Mental retardation 53-58 1981. If interaction must be sustained during intermittent depressive 14. DSM-IV, supra note I, at 301. See also Alan Goldstein & stages of bipolar disorder, the approach will likely be substan Marc Burd, "The Role of Delusions in Trial Competency tially similar to that described supra for a free-standing case of Evaluations," 3 Forensic Rep. 361-86 1990; Mordecai Kaff major depression. man, "Paranoid Disorders: Family Sources of the Delusional System," 5 1. Fam. Therapy 107-16 1983; Wolfgang Kaschka et al., "Treatment Outcome in Patients with Delu CONCLUSION sional Paranoid Disorder," 5 European 1. Psychiatry 240-53 Attorneys, investigators, and other defense team members will 1991; Alistair Munro, "Delusional Paranoid Disorders," 33 encounter a myriad of mental conditions in their clients. Canadian 1. Psychiatry 399-404 1988; and K. Shaji & While they are not encouraged to diagnose or treat mental ill Mathew Cyriac, "Delusional Jealousy in Paranoid Disorders," ness, they are frequently compelled to interact with afflicted 159 Britishf. Psychiatry 142 1991. 15. DSM-IV, supra note 1, at 637-38. criminal defendants without the assistance of mental health 16. Aaron Beck et at., Cognitive Therapy ofPersonality Disorders professionals. When this occurs, there are various approaches 108 1990. to collaboration and communication that are specific to certain 17. See Salman Akhtar, "Paranoid personality disorder: A Synthe pre-identified diagnoses. sis of Developmental, Dynamic and Descriptive Features," 44 Am. J. Psychotherapy 5-25 1990; David Bernstein et al.. While they may not always be in a position to express their "Paranoid personality disorder: Review of the Literature and appreciation directly, clients will always benefit when legal Recommendations for DSM-IV," 7 J. Personality Disorders services are delivered with consideration for and adaptation 53-62 1993; Ira Turkat & David Banks, "Paranoid Personal to the individual’s unique personal circumstances. ity and its Disorder," 9 1. Psychopathology & Behavioral As sessment 295-304 1987; and Janice Williams, "Cognitive Intervention for a Paranoid personality disorder," 25 Psycho REFERENCES therapy 570-75 1988. I. American Psychiatric Association, Diagnostic and Statistical 18. Beck et al., supra note 16, at 109-10. Manual ofMental Disorders 1994 hereinafter, DSM-IV. 19. Kaplan & Sadock, supra note 11, at 782. 2. /d.at327. 20. DSM-IV, supra note 1, at 181. 3. See Richard Redding, "Depression in Jailed Women Defendants 21. EdgarNace, The Treatment ofAlcoholism 52 1987. and its Relationship to their Adjudicative Competence," 25 1 22. See James Massman & Donna Tipton, "Signs and Symptoms Am. Acad. Psychiatry & L. 105-19 1997; and Barry Rosenfeld Assessment: A Guide for the Treatment of the Alcohol With & Alysa Wall, "Psychopathology and Competence to Stand drawal Syndrome," 20 1. Psychoactive Drugs 443-44 1988; Trial, 25 Crim. Just. & Behav. 443-62 1998. and Alan Rosenbloom, "Emerging Treatment Options in the 4. See Kent Anderson & Jay Skidmore, "Empirical Analysis of Alcohol Withdrawal Syndrome," 49 1. Clinical Psychiatry 28- Factors in Depressive Cognition: The Cognitive Triad Inven 311988. tory," 51 .1. C/in. Psycho!. 603-09 1995; and Kevin Stark et 23. Wright et al., supra note 6 at 323. al., "Cognitive Triad: Relationship to Depressive Symptoms, 24. Eric Drogin & Curtis Barrett, "Addictions and Family Law," in Parents’ Cognitive Triad, and Perceived Parental Messages," 24 1998 Wiley Family Law Update 61-106, at 86 1998. 1. Abnormal Child Psych. 615-31 1996 25. See Phil Moring, "Trust, the Counselor and Containment in 5. Aaron Beck, Cognitive Therapy of Depression 111979. Counseling the Drug-Addicted Client," 3 Psychodynamic 6. Jesse Wright et al., Cognitive Therapy with Inpatients 7 1993. Counseling 433-46 1997 for further discussion of both sides 7. DSM-IV, supra note 1, at 46. Continued on page 34

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Continued from page 33 of this trust relationship. 26. Irogin & Barren, supra note 24. at 87. The Scope of the Right to Counsel 27. See Kim SchaelThr et at., "l’crformance Deficits on Tests of Problem Solving in Alcoholics: Cognitive in Kentucky Post-Conviction or Motivational Impairment?" I J. Substance Abuse 381-92 1989. Proceedings 28. Drogin & Barrett, supra note 24. at 87. 29. See James Duffy. ‘The Neurology of Alcoholic by Ed Monahan and Rebecca DiLoreto Denial: Implications for Assessment and Treat ment," 40 Canadian .1 Psychiatry 257-63 1995; Charles Ward & Paul Rothaus, "The Measurement Many areas of criminal law practice are misunderstood. The appointment of Denial and Rationalization in Male Alcoholics," of counsel in post-conviction proceedings is an area of confusion, misun 47 1. Clinical Psycho!. 465-68 1991; and Eve derstanding and misconceptions for some people. In an attempt to pro Weisman et at., "Age and Denial of Alcoholism mote greater awareness, this article looks at what the law in Kentucky is Severity," 17 Clinical Gerontologist 55-58 1996. on the appointment of counsel in post-conviction proceedings. Statutory 30. Drogin & Barrett, supra note 24, at 87-88. law, the rules of the Kentucky Supreme Court, and twenty years of 3!. DSM-IV, supra note 1, at 285. caselaw in Kentucky indicate that the law on appointment is: 32. See Sean Kaliski, "Violence, Sensation Seeking, and Impulsivity in Schizophrenics Found Unfit to O Counsel must be appointed in RCr 11.42 proceedings if the movant Stand Trial, 23 Bull. Am. Acad. Psychiatry & L. is indigent and unambiguously requests appointment of counsel in 147-55 1995. the body of the motion for purposes of supplementing his grounds to 33. See Joseph Bloom et at., "The Involvement of vacate his conviction; Schizophrenic Insanity Acquittees in the Mental O If the movant fails to ask for counsel in the body of the motion, he is Health and Criminal Justice Systems, 15 Psychiat not entitled to appointment; ric Clinics North Am. 591-604 1992. 34. Silvano Arieti, Understanding and Helping the O If the indigent asks for counsel only for an evidentiary hearing and Schizophrenic 156-62 1979. This family-oriented not to supplement his grounds, the indigent is entitled to counsel if reference won the National Book Award for Sci an evidentiary hearing is warranted; ence upon its release over twenty years ago. 0 Even if there is a material issue of fact that can be determined on the 35. Kaplan & Sadock, supra note II, at 489. face of the record, counsel must be appointed if the indigent clearly 36. See DSM-IV, supra note I, at 350-91. requests appointment in the motion in order to file supplemental 37. See Wayne London & Barbara Taylor, "Bipolar grounds; disorders in a Forensic Setting," 23 Comprehensive o During the course of representation, counsel and Psychiatry 33-37 1982. the indigent client can originate the filing of a post-conviction action 38. See, generally William Reid et at., The Treatment that is appropri ofPsychiatric Disorders 225-33 3 ed. 1997. * ate, and o If the action is not a proceeding a reasonable person with adequate means would be willing to bring at his own expense then counsel who has been appointed by the court can withdraw from representa tion after making such a determination with approval of the court.

Constitutional Aspects. There is no federal or state constitutional right to counsel in a post-conviction proceeding. Murray v. Giarratano, 492 U.S. 1, 10 1989. However, Kentucky has judiciously provided for the right to counsel in certain situations through its court rules and statutes.

There are very pragmatic reasons for these provisions - economy, effi Eric Y. Drogin, J.D., Ph.D., ABPP is an attor ciency, and finality. ney and board-certified forensic psychologist, on the faculty of the University of Louisville A Triumvirate of Authority: Statute, Rule, and Caselaw School of Medicine. Dr. Drogin chairs the Statute. Kentucky statutory law, KRS 31.11 02c, provides for the ap ABA Behavioral Sciences Committee, and pointment of counsel when: serves on the ABA Commission on Mental and Physical Disability Law. 1the attorney and the needy person consider the action appropriate, and 2a determination is made that the post-conviction action is a proceeding P.O. Box 22576 a reasonable person with adequate means would be willing to bring at Louisville, Kentucky 40252-0576 his own expense. 877 877-6692 voice; toll-free If counsel is appointed and the post-conviction action is not a proceeding 877 877-6685 facsimile; toll-free a reasonable person with adequate means would be willing to bring at his e-mail eyddrogin.net own expense then the statute provides that counsel with the approval of the court involved can withdraw from representation. KRS 31.110 states:

34 THE ADVOCATE Volume 22, No. 4, July 2000

I A needy person who...is being detained under a convic here." Id. The case was remanded for the circuit judge to appoint tion of a serious crime, is entitled: counsel for Ivey and "permit him to present for adjudication sup a To be represented by an attorney to the same extent as a plementary grounds for RCr 11.42 relief." Id. person having his own counsel is so entitled;... Must appointment of counsel be made for investigation purposes 2 A needy person who is entitled to be represented by an at prior to the filing of a pro se pleading, or are appointments con torney under subsection I is entitled: fined to supplementing the defendant’s pro se pleading with rep a To be represented in any other post-conviction proceed resentation following through the evidentiary hearing and on ap ings that the attorney and the needy person considers peal? sic appropriate. However, if the counsel appointed in KRS 31.11 02c provides for a needy person to be represented such post-conviction remedy, with the court involved, in any post-conviction proceeding that the attorney and the determines that it is not a proceeding that a reasonable needy person consider appropriate. KRS Chapter 31’s provision person with adequate means would be willing to bring of counsel through the statewide public defender program con at his own expense, there shall be no further right to be templates situations where in the course of representation coun represented by counsel under the provisions of this sel will originate a post-conviction motion on behalf of the client chapter. when appropriate. Rule. The Kentucky Rules of Criminal Procedure provide for While it is clear that Kentucky’s statutory scheme supports the the appointment of right to counsel in post-conviction proceedings in the course of counsel when: representation when appropriate, the language of KRS 31.1102 1 the movant is financially unable to employ counsel; c and facts of Ivey support the view that a judicial appointment 2 the movant makes a specific written request, and of counsel should take place after an "action," or pleading alleg 3 a material issue of fact is raised and is not able to be deter ing improprieties surrounding the conviction has been filed un mined from the record. less during the course of representation counsel and the client RCr 11.425 provides: originate the filing. The filing of the RCr 11.42 vests the court Affirmative allegations contained in the answer shall be con with jurisdiction to act in the case. Bowling v. Commonwealth, troverted or avoided of record. If the answer raises a material 964 S.W.2d 803, 804 Ky. 1998 determined that judges lose issue of fact that cannot be determined on the face of the rec jurisdiction over a case 10 days after the entry of the fmal judg ord the court shall grant a prompt hearing and, if the movant is ment and they therefore do not have jurisdiction to authorize without counsel of record and if financially unable to employ funding to conduct an investigation in support of a proposed but counsel, shall upon specific written request by the movant, unfiled motion to vacate a sentence. appoint counsel to represent the movant in the proceeding, A series of cases beginning with Ivey elaborate on when counsel including appeal. must be appointed. In Ivey, the movant filed an RCr .11.42 mo Caselaw. Two decades ago in Commonwealth v. Ivey, 599 5. tion alleging specific reasons his conviction should be vacated. W.2d 456 Ky. 1980 the indigent petitioner filed a CR 60.02 The trial court initially determined that the appointment of coun motion to amend the order in the RCr 11.42 proceeding since sel was not necessary because the pleadings did not raise a mate the circuit judge refused to appoint counsel that was requested rial issue of fact. The Supreme Court remanded the case and or under KRS 31.110. The circuit judge refused to appoint coun dered counsel be appointed to present supplementary grounds. sel under RCr 11 .425 since there was no material issue of The appellate court recognized the confines of RCr 11.42, which fact raised. The Kentucky Supreme Court held it was error to typically limits defendants to one such action where all known deny counsel under KRS 31.110. Looking at both the statute issues must be presented. Counsel plays an important role in sup and rule, the Court observed that the "provision for appoint plementing a defendant’s pro se complaints due to the harsh con ment of counsel found in RCr 11.425 was intended to set the fines of the rule that prohibits successive petitions. minimum standard for post-conviction relief proceedings. The In Gilliam v. Commonwealth, 652 S.W.2d 856 Ky. 1983 the legislature could and did provide for a more generous policy I movant filed a motion to obtain a free copy of the transcript of of appointing counsel for indigents Id. at 457. his trial and guilty plea. Gilliam argued that he needed the tran The Court noted the pragmatic, practical, and equitable rea script to help him prepare a motion for post-conviction relief. sons for the statutory right to counsel above the minimum re The Kentucky Supreme Court found that the purpose of the re quired when it observed that the Court’s RCr 11.42 rule barred quest for a transcript was to "enable counsel to search the record successive RCr 11.42 motions and that without the assistance for points subject to collateral attack under RCr 11.42, although of counsel "lvey could be effectively precluded from raising no RCr 11.42 motion had yet been filed. In essence, [the motion valid grounds by failure to include such grounds at the time of for transcripts] is an independent action to obtain a record pre his first motion. This inequity between the needy and the afflu paratory to filing an RCr 11.42 motion." Id. at 857. Gilliam ob ent is cured by the statute." Id. at 458. served that Ivey "provides the movant with legal assistance in Under this analysis, the Supreme Court’s opinion was that preparing and presenting grievances. It does not provide a "KRS 31.110 and RCr 11.42 are complementary and clearly provide for appointment of counsel in the sjtuation presented Continued on page 36

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Continuedfrom page 35 Court has observed that the 28 U.S.C. Section 2255 proce mechanism to search for unknown grievances." Id. at 858. dure "is the federal equivalent of our RCr 11.42." Gilliam v. Since Gilliam was searching for issues, he was not entitled to a Commonwealth, 652 S.W.2d 856, 859 Ky. 1983. transcript for preliminary investigative measures. In Hopewell v. Commonwealth, 687 S.W.2d 153 Ky. App. A pro se RCr 11.42 motion must set forth specific grounds 1985 the Court refused to reverse on the grounds that the challenging the conviction which give fair notice the re of movant was denied appointment of counsel since a hearing quested relief The prose litigant must make a "clear and unam and appointment of counsel are "not necessary when the rec biguous" written request for counsel that is "contained in the ord in the case refutes the body of the RCr 11.42 motion." Beecham v. Commonwealth, movant’s allegations." Id. at 657 S.W.2d 234, 237 Ky. 1983. Beecham’s signed affidavit of 154. Hopewell, however, indigency attached to the motion was not sufficient to require cited Newsome v. Common the appointment of counsel. The circuit judge is not required to wealth, 456 S.W.2d 686 Ky. automatically appoint counsel if such appointment is not re 1970. Newsome was decided quested in the body of the motion. a decade before Ivey and is The written request for counsel must also specify the purpose inconstant with Ivey. New- for which counsel is desired. In Allen v. Commonwealth, 668 5. some was decided before W.2d 556, 557 Ky.Ct. App 1984, the movant asked for ap KRS Chapter 31 was enacted pointment of counsel solely for assistance at the evidentiary into law. Newsome relied only hearing but did not ask for counsel to supplement his motion to on the language of RCr 11.42. vacate. Since the Court found that no evidentiary hearing was Hopewell did not mention or required under the grounds alleged by the movant, the Court distinguish Ivey, and did not held that it was not error to fail to appoint counsel for an un Rebecca DiLoreto enlighten practitioners on how Post-Trial Director needed evidentiaiy hearing. to interpret it juxtaposed In Commonwealth v. Stamps, 672 S.W.2d 336 Ky. 1984 the against Ivey. Hopewell did not overrule Ivey. movant asked for counsel and was not provided one in his RCr The right to appointed counsel does not extend to Civil Rule 11.42 motion. The Kentucky Supreme Court, recognizing its 60.02 proceedings. Gross v. Commonwealth, 648 S.W.2d holding in Ivey, looked at the merits of the claims and found 853, 857 Ky. 1983. "an evidentiary hearing is totally unnecessary" and "remanding this case for appointment of counsel to search for supplemen From the holdings in this series of cases, judges have the obli tary grounds for RCr 11.42 relief is also an exercise in futility" gation under Ivey, KRS 31.11 02c, and RCr 11.425 to and therefore refused to reverse for failure to appoint counsel. appoint counsel when it is explicitly requested in writing in Id. At 339. The Court applied a harmless error analysis. It is not the motion for purposes of supplementing the grounds to va easy to understand how harmless error analysis can be utilized cate the conviction. If upon appointment, counsel represents to preclude appointment of counsel for purposes of supplement to the court that counsel has determined that the post- ing the record since courts cannot divine what might be uncov conviction action is not a proceeding a reasonable person ered. Stamps, which did not state it was overruling or modifying with adequate means would be willing to bring at his own Ivey, is at odds with Ivey. In effect, Stamps invites trial judges expense, then the court should allow counsel to withdraw if to commit harmless error. the court concurs in counsel’s determination. What the Statewide Data Tells In a recent case, Osborne v. Commonwealth, 992 S.W.2d 860 Us: Oppressive Numbers Are a Myth. Since July 1, 1998, Ky. 1999, the benefit of having counsel was demonstrated. the Post-Conviction Branch of the Department of Public Advocacy has Counsel, who was appointed after a pro se RCr 11.42 had the responsi motion bility of providing was filed, requested an evidentiary hearing to present proof representation in court-appointed RCr of 11.42 cases from all 120 the claims raised by the pro se defendant. The trial judge denied counties in the state. See Diloreto the evidentiary hearing but the and Thomas, "Redefining the Mission in the Post-Conviction Kentucky Court of Appeals re Branch," versed based on the preserved request for hearing The Advocate, Vol. 20, No. 5 September 1998 at a on ineffec page 66-67. Prior tive assistance on whether to plead guilty or proceed to trial. to 1998, each county’s local trial public defender service provider was responsible for either provid In cases where there has been an evidentiary hearing, harmless ing representation of these clients or securing conflict coun error analysis has been found inappropriate. In United States v. sel. Public Advocate Ernie Lewis shifted responsibility for lasiello, 166 F. 3d 212, 214 3rd Cir. 1999 the Third Circuit representing these clients from the local trial attorney to the held that the failure to appoint counsel in a post-conviction ac state post-conviction branch attorneys for three reasons: tion under 28 U.S.C. 2255 and Rule 8c of the Rules Govern 1. to provide uniform ing Section 2255 Proceedings where an evidentiary hearing was quality representation to indigent clients in these post-conviction cases conducted "is not susceptible to harmless error analysis. Rather, by attorneys specifically hired for and experienced in the prejudice to the petitioner is presumed." See also, United States post-conviction litigation; 2. to allow trial attorneys with Vasquez, 7 F.3d 81 5" Cir. 1993. The Kentucky Supreme huge caseloads to focus on the

36 THE ADVOCATE Volume 22, No. 4, July 2000

representation of trial clients, and 3. to more equitably distribute caseloads within DPA to pro PUBLIC DEFENDERS & vide more reasonable caseloads for trial attorneys, to better serve the courts in both trial and post-conviction litigation. PUBLIC ADVOCATES: After some initial adjustments. this new plan for delivering counsel to post-conviction clients is up and running. This is AN UNNECESSARY the first time in DPA’s history that one post-conviction leader has managed all post-conviction appointments. DICHOTOMY by Thomas C. Glover The perception of many is that there are an endless number of motions to vacate being recklessly filed across the Common wealth. The Kentucky Administrative Office of the Courts of AOC data indicates this is a myth. amongst the hundreds In July of 1999, I began to handle the 202A civil commitment the four thousands of cases in the system, AOC data for years, cases at Western State Hospital for the Hopkinsville Trial Of FY 1996 - FY 1999, indicates there were but reported mo 768 fice. This was a new experience for me and was somewhat dis tions to vacate or set aside a sentence filed, which is an aver concerting. I entered a world with a language and culture that age of 192 per year. Report was foreign to me. In my criminal practice, I was always the pro excludes Jefferson County Dis ponent of a diagnosis of mental illness. Mental illness was like a trict Court information. safe harbor into which my client could sail and seek shelter from In the FY 99 July 1, 1998 - a raging storm. I had never questioned a diagnosis, which would June 30, 1999, the first year of permit a complete defense or at least mitigate a difficult case. this shift in responsibility for My only questions had been for doctors who found my clients representation, DPA’s Post competent and responsible, when it appeared to all that the de I ..-nviction Branch received fendant was gravely ill. I entered every case in which the defen 111 appointments, 92 in RCr dant engaged in bizarre behavior with a presumption, and even 11.42 cases and 19 in CR hope, that a mental illness was present. Therefore, when I under 60.02 cases from over 40 took to defend civil commitment cases, I began with the assump counties. Of those 92 RCr tion that my clients were likely to be mentally ill and need treat 11.42 appointments in those 40 ment. No one had ever told me that I would have to completely counties, 24 were from Fayette retool my personal approach to mental illness, to successfully Ed Monahan County with no evidentiary represent my civil commitment clients. Deputy Public Advocate hearings granted, and 14 were from Warren County. When you first visit a locked ward in a mental hospital, you are overwhelmed with a sense of confusion, sadness, disorder and Conclusion: Promoting Economy, Efficiency, and Finality hopelessness. You see people in a clinical setting and you natu The right to counsel in post-conviction proceedings is an im rally assume that they need to be in the hospital for their own portant right that Kentucky has wisely provided to insure effi good. As a criminal attorney, you quickly conclude that your dis cient, complete, professional litigation of matters in one post- turbed criminal clients should have been in this mental hospital conviction proceeding. This is of measurable benefit to the and not prison. After speaking with your first patient, you be courts and the public that seek reliable results in which confi lieve that the humanitarian thing to do is to ensure treatment for dence can be placed. This post-conviction process, assisted by your client. This is the source of the infamous "best interest of the guiding hand of counsel, insures deliberate consideration the client" standard, which often prevails in 202A hearings. of claims that, if true, undermine the reliability of the original There is no such standard in a civil commitment. Rather four conviction. The statute and rule and their application by Ken elements must be proven beyond a reasonable doubt by the gov tucky appellate courts through caselaw provide a pragmatic ernment as set out in KRS 202A.026. The government must system of insuring the right to counsel in appropriate proceed prove: ings that promotes economy of resources and finality of final judgments. As Justice Lukowsky astutely observed two dec 1. He can reasonably benefit from treatment; ades ago in Ivey, the statutory right to counsel allows for reso 2. The respondent suffers from a mental illness; lution of all legitimate claims in the first motion and provides 3. He presents a danger or threat of danger to self, family or no inequity between the needy and rich.* others as a result of the mental illness; 4. And hospitalization is the least restrictive alternative mode of treatment presently available.

Avoiding the "best interest of the client" standard is the greatest hurdle to be cleared by a novice attorney in this field, followed

Continued on page 38

37 THE ADVOCATE Volume 22, No. 4 July 2000

closely by a need to understand the role of Protection and Ad 14. Best Interest Trap vocacy. 15. Social Workers 16. Structure of P&A Protection and Advocacy P&A is a special division of the 17. Mental Retardation At Mental Hospitals Department of Public Advo 18. Utilization of P&A’s Services In Defense of 202A Cases cacy, which provides advo 19. Treatment Plans cates to represent the interest of the mentally ill in Kentucky. This is by no means an exhaustive list, but it covers the major While P&A has several in- ity of problems a new attorney will face. Never again should a house counsel, they also have DPA attorney be literally thrown into this arena and asked to advocatorial specialists who survive by their wits alone. are not attorneys. P&A re ceives its funding primarily This training challenge is not so great as it would appear. from federal grants and al There are attorneys in Hopkinsville Western State Hospital, though every state has a feder Hazard ARH Psychiatric Unit and Lexington Eastern State ally funded P&A, Kentucky is F Hospital who handle 202A cases on a regular basis. They one of only a few states that would greatly benefit from the training, but only a handful of V have placed P&A within the attorneys would need this training. The Louisville Public De Thomas C. Glover state government. fender System Central State Hospital has been very success ful in their approach to civil Placing commitments and could be P&A with the public defenders appears to be a logical brought in to aid in the training. fit on the surface, but it creates a natural tension derived from competing missions. Often a public defender does not want his If through retraining, DPA takes an attorney and sensitizes him client to go to prison and finds commitment to a mental hospi to the issues involved in 202A cases, we will solve the major tal a far better alternative. A P&A advocate does not want his ity of problems that currently exist. By networking between client warehoused in a hospital for years, misdiagnosed and P&A and the Trial Division, we can create a coalition, which drugged into oblivion. The tension arises when an advocate, who will result in strong and effective representation. By an under can’t practice law, must rely on a public defender to at standing tack a of the unique perspective of both a criminal attorney diagnosis and hospitalization, and the public defender is and programmed an advocate, the two can be brought together to form an to accept any diagnosis of mental illness with alliance relief. and thereby protect our most vulnerable clients.+

The challenge of retooling the approach of a public defender to handle 201k cases is not insurmountable. Thomas C. Glover Western Regional Manager I believe training should be set up for any attorney undertaking 1100 South 202A representation, regardless of experience in the criminal Main Street realm, to sensitize them to the needs of the mentally ill and to 2nd Floor, Suite 22 educate them as to the differences in criminal and civil com Hopkinsville, Kentucky 42240 mitment practice. An experienced 202A public defender, a Phone: 270 889-6527 P&A attorney and several advocates should invest several Fax: 270 889-6020 days with the new attorney, providing intense training in the Email: tglovermaiI.pa.state.ky.us following areas:

1. Procedure 2. Substantive Law 3. Medications 4. How To Read A Medical Chart 5. Compassion Fatigue 6. DSM IV 7. Forced Treatment "Without a sense of caring, there can 8. Treatment Team be no sense of community." 9. Placement Alternatives 10. Guardianship II. Jury Trials -AnthonyJ D’Angelo 12. Making The District Judge Your Ally 13. Timelines

38 THE ADVOCATE Volume 22, No. 4, July 2000

thus, the trial court did not abuse its discretion in denying his Kentucky Caselaw Review CR 60.02 motion without a hearing. by Shannon Dupree Smith, Assistant Public Advocate A viles v. Commonwealth _S.W.3d 4/14/00, Ky. Ct. App. 2000 WL 377501 White v. commonwealth, Not Yet Final S.W.3d 4/28/00 Ky. Ct. App. Aviles pled guilty to one count of trafficking in a controlled 2000 WL 502538 one count of trafficking in a con Not Yet Final substance, second-degree, third-degree and one count of theft by un In 1995, White pled guilty to one count of trafficking in a con trolled substance, taking over $300. On appeal, Aviles argued that trolled substance and PFO II. The Commonwealth recom lawful to KRS 533.010 made imposition of alternatives mended a five-year sentence on the trafficking offense en amendments inc4rceration mandatory for certain classes of offenders. hanced to thirteen years based on the PFO II status. At the to time White committed the 1995 trafficking offense, he was on Aviles submitted that the amendments to KRS 533.010 enti shock probation for a 1991 trafficking conviction. The trial tled her to probation or proba court ordered the thirteen-year sentence to run consecutive tion with alternative sentenc with the sentence for the 1991 felony conviction. ing. The Court stated that the statute, as amended, still gave failure of his White filed an RCr 11.42 motion based on the discretionary authority to the trial counsel to argue for concurrent sentencing. The Com trial court to determine on a monwealth responded that KRS 533.0602 precluded imposi case-by-case basis the appro tion of a concurrent sentence for a felony offense committed priateness of probation or pro while the defendant was on probation. The trial court denied bation with alternative sen said motion, and the Court of Appeals affirmed the denial. tencing. The statute states that the court shall grant probation reconsider White filed a CR 60.02 motion asking the court to or conditional discharge un thirteen-year sentence run consecu its decision ordering the to less the court "is of the opin with sentence for conviction. The trial tively the the 1991 ion that imprisonment is nec court denied the motion. essary for the protection of the Shannon Dupree Smith public" based on one of three On appeal, White argued that the trial court should have held a factors. The three factors include recidivism, the need for cor hearing on his CR 60.02 motion. He sought a retrospective rectional treatment, and whether an alternative disposition application of KRS 532.110 which allows for concurrent sen would unduly depreciate the seriousness of the crime. tences when multiple sentences of imprisonment are imposed, and argued that KRS 532.1101 controlled KRS 533.0602 The Court cited Turner v. Commonwealth, 914 S.W.2d 343 because the former was recently amended. The Court of Ap Ky.1996 to support the holding that the determination of peals citing Commonwealth v. Hunt, 619 S.W.2d 733 Ky. whether to grant probation is within the discretion of the trial App.l981, stated that KRS 533.0602 took precedence over court. KRS 532.110. Aviles also argued that if the crime committed was nonviolent, The Court stated that there is a presumption of prospective that it could not be the basis for determining that probation application and that there was no express language in KRS would unduly depreciate the seriousness of the offense. The 532.110 indicating that it should be given retrospective appli Court stated that the language of the statute did not support cation. The Court also stated that there was long-existing case Aviles position and that had the legislature intended to change law establishing the primacy of KRS 53 3.060 2 over KRS when a court could impose imprisonment to nonviolent of 532.110. The Court further noted that the particular amend fenders, it was required to use clear and plain language that a ment to KRS 532.110 would not have effected White’s situa departure from the prior interpretation was intended. tion. The amendment to KRS 532.110 placed a 70-year limi tation on the aggregate of consecutive indeterminate sen Finally, Aviles argued that the trial court should have consid tences. ered home incarceration pursuant to KRS 532.210. This stat ute provides that any misdemeanant or felon who hasn’t been The Court stated that White was not entitled to a hearing on convicted of or pled guilty to a violent felony offense may pe-. his CR 60.02 motion unless he affirmatively alleged facts tition the court for a portion of their sentence in the countyjail which, if true, justified vacating the judgment and further al be served under conditions of home incarceration. Aviles was leged special circumstances that justified CR 60.02 relief. sentenced to the state penitentiary. Thus, she was not included

The Court found that White did not meet this standard, and Continued on page 40

39 THE ADVOCATE Volume 22, No. 4 July 2000

Continuedfrom page 39 to said agreement, the indictment was later dismissed with in the class of prisoners who could petition for home incar prejudice. Hyatt moved to segregate his criminal records un ceration. der the indictment pursuant to KRS 17.142. The trial court denied the motion. Lozier v. C’ommon wealth __S.W.3d_ 4/7/0 Ky. Ct. App. KRS 17.142 1 directs the court to issue an order to segregate 2000 WL 356385 the criminal records if the person who is the subject of those Not Yet Final records meets one of the following requirements: a is found Lozier pled guilty to third-degree sodomy and was sentenced innocent of the charges, b the charges are dismissed, or c to a five-year term of imprisonment and a three-year term of the charges are withdrawn. The Court held that the language conditional discharge. On appeal. Lozier argued that the re of KRS 17.142 is mandatory in that if application has been cently enacted KRS 532.043 which imposes a three-year pe made, and a b or c applies to the arrestee, then the court riod of conditional discharge for sex offenders, subject to shall issue an order to segregate the criminal records. revocation and reincarceration upon violation of terms and KRS 197.045 4 which restricts the award of good time for The Commonweath argued that KRS 17.142 was not intended sex offenders are ax postfacto laws and thus, unconstitutional to apply to charges which were dismissed as a result of partici as applied to her. pation in a pretrial diversion agreement, but rather only to cases where indictments were dismissed due to ilmocence or The Court set forth the test for determining whether a law is an lack of evidence. ex postfacto law: 1 it must apply to events occurring before its enactment, and 2 it must disadvantage the offender. The Court stated that it was clear the legislature intended for a successful pretrial Concerning KRS 532.043, the Court diversion to wipe the slate clean as to those found it met the first charges, and that in prong of the test. KRS 532.043 became effective the absence of an express legislative direc July 15, tive to the contrary, a 1998 and Lozier’s offense occurred prior to that date. successful pretrial diversion participant is entitled to qualifi under KRS 17.142. The Court also found that the second prong of the test was met, that is, that the application of KRS 532.043 5 disadvan Manning v. common wealth. taged Lozier. When Lozier committed her offense, she was _S.W.3d_4/20/00, Ky. exposed to the possibility of a maximum five-year sentence. 2000 WL 426360 Under KRS 532.043, Lozier was subject to the possibility of Not Yet Final serving three additional years beyond the maximum five-year Manning was convicted of first-degree manslaughter for the sentence to which she was subject when she committed the death of his step-father. Manning stood to inherit his step crime. The Court held that the application of KRS 532.043 to father’s farm upon his death. However, his step-father offered Lozier’s sentence was unconstitutional as an ex postfacto law. to sell the farm to someone else. The next day, the step-father KRS 197.045 4 defers the effective date of any good time was found dead. Manning confessed to his common law wife, credit earned until successful completion of the sex offender Lunell, that he murdered his step-father. He told her in detail treatment program. Concerning KRS 197.045 4, the Court exactly how he killed him. In turn, Lunell told a detective eve also found that the court had retrospectively applied the stat iything Manning had told her. ute. However, the Court stated that KRS 197.045 4 did not impose any additional punishment upon Lozier. The Court At trial, Lunell testified that she could not recall what Man reasoned that since Lozier was convicted and sentenced after ning had told her regarding the death of the victim. She stated the effective date of the statute, it did not deprive her of any that she only vaguely remembered speaking with the detective. previosuly earned credits. The Court noted that the statute did After the Commonwealth laid a foundation pursuant to KRE not deprive her of the opportunity to earn good time, rather, it 613, the video of her statement to the detective was admitted merely deferred the effective date of any good time that she at trial as a prior inconsistent statement. could earn till the successful completion of the sex offender treatment program. The Court stated that the constitutional right of confrontation does not prohibit the introduction of all hearsay evidence and The Court held that the application of KRS 197.0454 to Loz that no person should have the power to obstruct the truth- ier’s sentence was constitutional and not an ex postfacto law. finding process of a trial and defeat a prosecution by saying they cannot recall certain events. The Court held that the trial Hyatt v. Commonwealth court was correct in admitting the video of Lunell’s prior in _S.W.3d_4/7/00, Ky. Ct. App. consistent statement and that the Confrontation Clause was 2000 WL 356384 satisfied by the opportunity for cross-examination of Lunell at Not Yet Final trial. Hyatt was charged with one count of first-degree sexual abuse. Hyatt entered into a pretrial diversion agreement, and pursuant Manning also argued on appeal that the trial court erred by

40 THE ADVOCATE Volume 22, No. 4, July 2000

denying admission of a police report which indicated that a The Court stated that a person may be sentenced to jail for white female had approached the officer with details regarding civil contempt but the party in contempt "carries the keys to the victim’s death as potentially related to another murder jail in his pocket" because he is entitled to immediate release committed by someone else. This report was not admissible upon obedience to the order of the Court. The purpose of civil

under KRE 8036 , the business records exception to the contempt is to compel obedience to and respect for an order of hearsay rule. The Court stated that in order for a police report the court. However, if the purpose of the court is to punish, to be admissible under KRE 8036, all parts of the report such sanction is criminal contempt. must be admissible under some hearsay exception. If a par ticular entry in the record would be inadmissible for another The Court held that Dunagan did not in effect "hold the keys reason, it does not become admissible just because it is in to the jail cell in his hand" because he was conditionally dis cluded in a business record. The Court held that anything in charged as a criminal defendant. Dunagan was required to the police report regarding what a white female may have told serve 30 days of the sentence. The circuit judge did not order the officer would be inadmissible, because the statements Dunagan to be released if he began making weekly payments. would not qualifi for admission under any other hearsay ex The Court noted that even if Dunagan had began making pay ception. ments on a weekly basis after his imprisonment, he could not have left jail until his 30-day sentence was completed. Concerning his PFO I conviction, Manning argued that both of the prior felony convictions had to be within five years of the The sentence Dunagan received had the effect of compelling commission of the instant offense. The Court cited Howardv. obedience to the order of the court but it was actually intended Commonwealth, Ky. App., 608 S.W.2d 62 1980, stating that to punish him for failing to abide by the order of the court. the persistent felony statute only requires that completion of service of sentence or discharge from probation or parole on The Court reversed, and ordered that the circuit court order any, not each, of the prior convictions have to have occurred dismissing the indictment be reinstated. with five years of the commission of the instant offense. Commonwealth Lastly, ofKentucky v. Montaque, Manning argued that the trial court erred in instructing _S.W.3d_4/20/00, the jury on first-degree Ky. manslaughter. He contended that the 2000 WL 426364 Commonwealth failed to prove by any non-speculative evi Not Yet Final dence that he was suffering from extreme emotional distur Montaque was convicted of trafficking in a controlled sub bance at the time of the victim’s death. The Court held that a stance first-degree and possession of drug paraphernalia. Ad trial court is required to instruct on every theory of the case ditionally, she was found guilty of being in possession of a reasonably deducible from the evidence. Based on the evi firearm at the time of the commission of the offenses which dence presented at trial, the Court found that the jury had a subjected her to an enhanced penalty under KRS 21 8A.992. solid basis for the finding that Manning was acting under ex treme emotional disturbance when he killed the victim. Montaque admitted having the drugs and further admitted she had intended to sell it. She denied, however, that the un Dunagan v. Common wealth, loaded, semi-automatic handgun found in a trunk of a car _S.W.3d_4/20/00, Ky. owned by her boyfriend’s mother and parked in the parking lot 2000 WL 426224 played any part in her drug dealing. Montaque said that she Not Yet Final was storing the gun for a friend. She also stated Dunagan was ordered to pay that she had $65 per week child support. In recently bought a new car and wasn’t even using 1994, he was indicted for flagrant the car in nonsupport. In 1996, the question any longer. court found Dunagan in contempt for his failure to pay child support and sentenced him to 90 days in jail, said sentence KRS 2l8A.992 provides for an enhanced penalty when a de being conditionally discharged as long as Dunagan paid the fendant child support and is found to be in possession of a firearm at the time of $25 per week toward the arrearage. Duna the commission of the offense. On appeal, Montaque argued gan again failed to make the payments, and the court ordered that KRS him to serve 30 218A.992 contemplates the existence of some nexus days of the 90-day jail sentence, probating the between the firearm and the underlying remaining 60 days on the offense, and that she condition that he comply with the should have received a directed verdict on the issue of whether order. she was eligible for sentence enhancement under KRS The court dismissed the 1994 indictment for flagrant nonsup 2l8A.992. The Commonwealth claimed that KRS 218A.992 port on the ground of double jeopardy. The issue on appeal did not require proof of a nexus but only proof of firearm pos was whether the principles of double jeopardy prevented session contemporaneous with the underlying offense. prosecuting a defendant for flagrant nonsupport after a civil court had sentenced him to jail for contempt for failing to pay The Court held that KRS 218A.992 does not require actual child support. possession of a firearm, but that it does require a nexus be Continued on page 42

41 THE ADVOCATE Volume 22, No. 4 July 2000

ontuiued lioni pug& 41 6th tween the crime committed and the Circuit Review possession of the firearm. Mere contemporaneous possession of a by Emily Holt, Assistant Public Advocate firearm is not sufficient to satisf’ the nexus requirement. The Court Austin v. Mitchell stated that when it cannot be estab 200 F.3d 3916th Cir. 2/25/00 lished that the defendant was in ac AEDPA tual possession of a firearm or that a This case involves interpretation of 28 U.S.C. § 2244d2, the provision of the tireann was within his or her imme Antiterrorism and Effective Death Penalty Act AEDPA that allows tolling of the fed diate control upon arrest, the Com eral habeas statute of limitations by pending state collateral review. nionwealth must prove more than mere possession. It must prove Austin was convicted in an Ohio state court of aggravated murder and received a life some connection between the fire sentence. His indictment did not contain the phrase "against the peace and dignity of arm possession and the crime. The Ohio," language that must be in all criminal indictments pursuant to the Ohio Constitu Court noted that this holding limits tion. Although this issue was raised at trial, Austin’s appellate attorney failed to in the reach of Houston v. Common clude the issue on direct appeal. wealth, 975 S.W.2d 925 Ky. 1998, but does not overrule it. On December 1, 1994, Austin filed a petition for state post-conviction relief, the grounds being that failure to In a dissenting opinion, Justice include the indictment issue on direct appeal constituted Graves opined that the statute does ineffective assistance of appellate counsel and that the not require proofof a nexus between indictment was invalid due to the omission of the neces the firearm possession and the drug sary constitutional language. Summary judgment was offenses. All that is required is pos granted to Ohio by the trial court. It is clear under Ohio session, which includes constructive case law that failure to include the language in question is possession. Justices Lambert and not prejudicial. Further, the trial court held that it had no Wintersheimer joined the dissenting jurisdiction to consider ineffective assistance of appellate opinion.* counsel. The Ohio Court of Appeals upheld the trial court’s grant of summary judgment and stated in dicta that the ineffective assistance of appellate counsel claim was raised in the wrong court and that, regardless, appellate counsel was not ineffective in failing to raise an issue con E.nily Holt stituting harmless error.

Under AEDPA, a state prisoner has one year from conclusion of the state appeal to file for federal habeas relief. 28 U.S.C. § 2244dl. If the state appeal concluded prior to the passage of AEDPA, the Sixth Circuit has held that there is a one-year grace pe Shannon Dupree Smith riod, which expired on April 24, 1997, one year after passage of AEDPA. Nooks v. Appellate Branch Collins, No. 98-3243, 1999 WL 98355 6th Cir. 1/29/99 unpublished opinion. Aus 100 Fair Oaks Lane, Ste. 302 tin thus had until April 24, 1997, to file his federal habeas petition. Frankfort, Kentucky 40601 Tel: 502 564-8006; However, "the time during which a properly filed application for State post-conviction or other collateral review Fax: 502 564-7890 with respect to the pertinent judgment or claim is pending E-mail: ssmithmail.pa.state.ky.us shall not be counted toward any period of limitation under this section." 28 U.S.C. § 2244d2. Austin asserted that his petition, filed January 29, 1998, was timely be cause the statute of limitations was tolled. The district court disagreed.

The Sixth Circuit first analyzed whether a properly filed state post-conviction petition must raise a federal constitutional issue to toll the AEDPA statute of limitations. The Court determined that it must.

Appellate Ineffective Assistance of Counsel Austin’s post-conviction petition contained a federal constitutional issue: ineffective assistance of appellate. Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 1985. The problem, the Court observed, was that this claim was filed in the wrong state court.

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The Court determined that it was unnecessary to reach the is and the jury came from another county. sue of whether a petition filed in the wrong state court is prop erly filed for the purpose of tolling AEDPA but indicated in Osborne then informed the jury that Boyle’s attorneys were dicta that it would follow the Fourth Circuit and hold that such expensive. He said that "Medicare payments for surgeries that a habeas petition would have to be dismissed as being "time- weren’t needed" paid for the defense, and that the doctor who barred on grounds that ‘properly filed’ implies notice to the testified for the defense "told the biggest whopper in the respondent, proper place of filing, and timeliness." Holloway world." v. Corcoran, 980 F.Supp. 160, 161 D.Md.1997, appeal dis Osborne implied that the jurors could be the next victims of missed by Hollowaj. v. Corcoran, 162 F.3d 1155 4th Cir. l998 assault by Boyle because his victims were selected at ‘random" an obvious misstatement of the facts of the case. Austin’s federal habeas petition did not contain ineffective He stated that Boyle "committed a murder: it’s just that Bob assistance of appellate counsel as a ground. Thus, the final [the victim] got saved in that emergency room." issue analyzed by the Sixth Circuit was whether the state post- conviction proceeding must address at least one of the federal Boyle was convicted of first-degree assault and sentenced to habeas grounds to toll AEDPA’s statute of limitations. The ten years. Boyle failed to prevail on the issue on direct appeal. Court adopted the rule that the state post-conviction review Boyle v. Commonwealth, No. 93-SC-l93-D Ky., 10/22/93 must address one or more of the federal habeas grounds to toll order denying discretionary review. the one-year AEDPA statute of limitation. Thus, in Austin’s case, his state claim failed to toll the AEDPA statute of limita Kentucky Supreme Court Reversed by Federal Court tions, and his federal habeas petition was properly dismissed. The Sixth Circuit applied analysis from United States v. Fran cis, 170 F.3d 546, 549-50 6th Cir. 1999, to determine that The question remains as to how a Kentucky defendant can the statements made by Osborne constituted prosecutorial mis properly preserve an ineffective assistance of appellate coun conduct: "badgering and interrupting a witness, name-calling, sel claim for federal habeas review. In Hicks v. Common predicting that the defendant will lie on the stand, and stating wealth, 825 S.W.2d 280 Ky.l992, the Kentucky Supreme before the jury that the defendant is in need of psychiatric help Court held that it would not consider claims of ineffective as are tactics so deplorable as to define the term ‘prosecutorial sistance of appellate counsel. Where can a defendant raise misconduct.’ Furthermore, closing arguments that appeal to this issue? class prejudices, encourage juror identification with crime vic tims, or vouch for the defendant’s guilt would each be deemed Boyle v. Million beyond ethical bounds." 201 F.3d 7116th Cir. 3/13/00 United States v. Hall Prosecutorial Misconduct Infected Integrity of Proceeding 200 F.3d 962 6th Cir. 1/19/00 This case represents a victory for defendants in the area of prosecutorial misconduct, although it must be noted that ap Actual Conflict of Interest: pellant is a wealthy physician and the inappropriate comments Representation of Co-Defendants made by the prosecutor primarily addressed his wealth and In this case, the Sixth Circuit examined a claim of ineffective social status. However, public defenders could apply the ra assistance of counsel where an attorney represented two broth tionale used by the Court to argue for exclusion of comments ers in a jury trial. The Court held that despite the fact that about indigent defendants’ lack of money and status in society. both brothers waived their right to separate counsel, the trial court should have intervened to protect Stanley Hall’s sixth Boyle, an ophthalmologist in Mayfield, Kentucky, was tried in amendment rights when an actual conflict developed and Graves County, for first-degree assault stemming from an al prejudice was obvious. tercation with his office assistant, her husband, and their neighbor. Because of a conflict, the regular prosecuting attor Rex and Stanley Hall were convicted of conspiracy to possess ney for Graves County was disqualified, and Thomas Osborne with intent to distribute marijuana and cocaine and possession served in his stead. The circuit court judge also recused him with intent to distribute marijuana and cocaine in federal dis self, and a jury from a neighboring county was brought in be trict court. Rex and Stanley were caught driving a vehicle cause of pretrial publicity. What followed at trial was a with marijuana in it. In a search of Rex’s home, the police "mockery of constitutional principles and protections." found marijuana and cocaine.

During cross-examination of Boyle, Osborne "launched into Before trial, the court, numerous times, informed the Halls of theatrics" and accused Boyle of lying, threw a deposition in the dangers of dual representation. The day before trial, at the his lap, and told him he needed a psychiatrist. During closing request of the U.S. Attorney’s office, the court conducted a argument Osborne told the jurors that Boyle received special hearing on the matter. The attorney representing the Halls ad treatment because of his social status, and cited as evidence of vised the court that if not allowed to represent both, he would this the fact that the prosecutor and judge recused themselves, Continued on page 44

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Continuedfrom page 43 affidavit to the application stating that he received the case in continue with his representation of Rex, a long-time client. Stan time to file the application but failed to do so due to his of ley said he wished to remain with the attorney after being ad fice’s "overwhelming caseload" and his own "personal heavy vised so by him. The Court endorsed Stanley’s decision. caseload."

A jury convicted both men of the charges. Rex was sentenced to Overwhelming Public Defender Caseload life imprisonment, and Stanley was sentenced to prison for 10 Can Equal Cause years and 3 months. The Sixth Circuit applied Maupin v. Smith, 785 F.2d 135, 138 6th Cir. 1986, analysis to determine if the federal habeas pe Conflict of interest cases involve a slight departure from normal tition was procedurally defaulted in state court. The Court Strickland analysis of ineffective assistance of counsel claims. determined that White established cause for his failure to fol There must be "specific instances in the record" suggesting con low the Ohio procedural rule. White did not comply with the flict, and the defendant must demonstrate the attorney "made a rule because of problems within the Ohio Public Defender’s choice between possible alternative courses of action, such as office. "The failure of the Ohio Public Defender to offer such eliciting or failing to elicit evidence helpful to one client but constitutionally-mandated counsel excuses the failure of the harmful to another." Thomas v. Foltz, 818 F.2d 476, 481 6th petitioner to abide by the timing requirements of applicable Cir., cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 procedural rules." The Court concluded that the case must be 1987 remanded to federal district court for a determination of whether White can establish prejudice. If so, he would be en Because the attorney failed to negotiate a plea agreement, the titled to federal habeas review of the merits of his claim. Sixth Circuit held that there was an actual conflict: "foregoing plea negotiations is proof of an actual conflict of interest." Plea U.S. v. Buchanan agreements were signed, but were withdrawn at the last moment. 207 F.3d 344 6th Cir. 2/17/00 Rex would have received life so it was clearly in his best interest to proceed to trial. Stanley would have received between three Racial Makeup of Jury: Batson Challenge and "Fair and four years imprisonment as he had no prior record. It was Cross-Section" Requirement obviously in his best interest to enter a guilty plea. Although this is a federal district court drug conspiracy case, it involves analysis of important constitutional jury issues and The Court then considered whether the attorney’s performance evidentiary issues. was "adversely affected by the conflict," Foltz, 818 F.2d at 480, and concluded that the jury’s confusion evidenced by a question Appellants first challenged the racial makeup of the jury and from the jury involving the lack of evidence linking Stanley to the jury selection process. The government used a peremptory the cocaine found in Rex’s home and the general lack of evi challenge to strike the only African-American selected for the dence implicating Stanley "should have indicated to the court not jury. Appellants argued that the challenge must be racially only that an actual conflict existed, but also that the conflict had motivated since they are all African-American. The govern ment’s alleged prejudiced Stanley Hall’s defense." In such a case, the trial court basis for challenge was the juror’s "general dis had a duty to intervene and sever the case. trust of what she read or saw or heard." It derived this belief from her answer to a written question: "What newspapers, White v. Schotten magazines, and kinds of books do you read? Grand Rapids 201 F.3d 743 6th Cir. 1/26/00 press. . . I read mysteries, romances, and my Bible. I listen to CNN. I really don’t trust our newspaper." The district court Defines Cause for Failure to Follow Procedural Rule overruled the Batson objection, finding the government’s basis White’s federal habeas petition alleged ineffective assistance of for challenge to be "logical" and race-neutral. appellate counsel. The district court dismissed the petition on the ground of state procedural default; the issue was not raised The Sixth Circuit, acknowledging that the government’s justi within the time limit set by Ohio App.R. 26B and the petitioner fication was "not ‘particularly persuasive," held that this was could not show cause and prejudice for the procedural default. "at least plausible and a sufficiently neutral justification to The Sixth Circuit held that ineffective assistance of appellate overcome the defendant’s Batson challenge." This ruling is a counsel in filing an application to reopen a direct appeal the further weakening of Batson in that it allows an unbelievable method by which appellate ineffective assistance of counsel is justification for a jury strike to overcome a legitimate Batson raised in Ohio constituted cause and remanded the petition to claim. the district court to determine prejudice. The appellants also objected at trial to the racial makeup of the Ohio App.R. 26B provides that an application to reopen a di entire jury panel, asserting that it did not represent the popula rect appeal must be filed within 90 days "from journalization of tion of the Western District of Michigan. The jury clerk testi the appellate judgment." White’s application was filed three fied about the assembling of venires, and the trial court over years after the statute of limitations had tolled. The Ohio Court ruled the objection. of Appeals refused to reopen the appeal, despite the fact that ap plicant’s current attorney, an Ohio public defender, attached an The Sixth Circuit noted that the Sixth Amendment requires a

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"fair cross-section of the community." United States v. Allen, to conspiracy, continuing to cooperate, and testifying at trial. 160 F.3d 1096, 1103 6th Cir. 1998, quoting Taylor v. Louisi Moody expressed some concerns, and the FBI and U.S. Attor ana, 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 1975. ney suggested he speak to an attorney. He did, and the attor The Court looked at the statistics presented by the jury clerk at ney, a month later, declined the offer. The attorney never in trial: African-Americans comprise 4.58% of the population quired about the substance of the interviews. of the area that the jury was pulled from; only 2.49% of the residents who qualified for jury service were African- Moody was subsequently indicted on conspiracy and other American; in this case, 2.86% of the venire were African- related charges. Several months later, his attorney advised American. The Court thus concluded that the fair cross- him to enter into a plea agreement. He was sentenced to 120 section requirement was not violated. months imprisonment, five years supervised release, and a spe cial assessment of $50. "Drug-Sniffing Dogs" Another issue raised on appeal was the admission of evidence On appeal of the district court’s determination that the 6th regarding drug-sniffing dogs’ positive reaction to currency amendment right to counsel attached pre-indictment, the Sixth seized from two of the appellants. The Court declined to de Circuit acknowledged that "logic, justice, and fundamental cide the issue of whether there is a presumption against the fairness favor the district court’s position." However, the admission of such evidence. However, it did indicate that be Court held that a bright-line test for the determination of when cause such a high percentage of money is tainted with the the right to counsel attaches was announced in Kirby v. Illi scent or residue of drugs, FRE 403 would support a holding nois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 that the probative value of such evidence is outweighed by the 1972: only "at or after the initiation of judicial criminal pro danger of unfair prejudice. ceedings--whether by way of formal charge, preliminary hear ing, indictment, information, or arraignment." In the concurrence, Judge Jones, joined by Judge Moore, ex pressed his opinion that the drug-sniffing dog evidence should Sixth Circuit Regrets Having to Follow Kirby v. Illinois have been excluded and that there should be a presumption The Sixth Circuit, in strong language, expressed disagreement against the admissibility of such evidence "unless the govern with the prevailing rule. It acknowledged that the dangers that ment offers other evidence showing a direct nexus between gave rise to the right to counsel--confrontation with the proce illegal narcotics, the currency in question, and the defendant. dural system, the prosecutor, or both--were present in this case Further, when circumstances of the dog-sniff detection in any and that this was a "triumph of the letter over the spirit of the

way cast doubt on the reliability of that evidence. . .we believe law." However, it held that in accordance with both Supreme courts should find such evidence inadmissible." Court and Sixth Circuit precedent [US. v. Sikora, 635 F.2d 1175 6th Cir. 1980], it was bound to hold that Moody was The Court also concluded that it was not error for the govern not entitled to counsel during pre-indictment plea negotiations ment to use actual packages of powder cocaine and crack co and reversed the district court. caine to aid in testimony since the jury was informed that the drugs exhibited were not actually seized from the defendants Judge Wiseman, in a concurring opinion, echoed the Court’s in the case. unhappiness with the result in this case. He noted that pre indictment plea bargains have become increasingly important U.S. v. Moody to defendants since the advent of the Federal Sentencing 206 F.3d 609 6th Cir. 1/25/00 Guidelines. He argued that the sixth amendment right to coun No Right to Counsel During sel should evolve "to meet the challenges presented by a Pre-Indictment Plea Negotiations changing legal paradigm" and urged the Supreme Court to re In Moody, the Sixth Circuit dealt a harsh blow to the sixth consider the Kirby bright-line test for attachment of the right amendment right to counsel. The Court held that a defendant to counsel. is not entitled to counsel during pre-indictment plea negotia tions. U.S. v. Marks 209 F.3d 577 6th Cir. 4/6/00 Moody was a participant in a conspiracy to deal cocaine. Evi Admissibility of Post-Plea Statements dence connecting Moody to the conspiracy, including cocaine, In this case, the Sixth Circuit interpreted FRCP I 1e6, was found in a search of his home and business. Mr. Moody which deals with the inadmissibility of pleas, plea negotia approached the FBI and volunteered to cooperate. Over a tions, and related statements, to not extend to statements made two-month period, Moody met with agents, without counsel, post-plea. This is important to Kentucky state court practitio provided information about the conspiracy, and made numer ners because under KR.E 4013 "any statement made in the ous self-incriminating statements. In two of the six interviews, course of formal plea proceedings, under either state proce an Assistant U.S. Attorney was present. dure or Rule 11 of the Fed.R.Crim.P, regarding either of the foregoing pleas" is inadmissible. Mr. Moody was offered a deal, before indictment, in which he would receive 5 years in prison in exchange for pleading guilty Continued on page 46

45 THE ADVOCATE Volume 22, No. 4 July 2000

Continued from page 45 missed this claim by noting that the "trial court’s instruction here was neither excessive nor so egregious that Defendant’s On the morning of appellants’ first scheduled trial, all three men ability to knowingly and intentionally waive his right to testify plead guilty and agreed to cooperate fully in the ongoing investi was impaired." Further, the defendant and his attorney had a gation. After they entered their plea agreements, a FBI Special lunch break to discuss the matter and defendant never notified Agent spoke to the defendants with defense counsel either pres the court that he wanted to testify. "There is not a scintilla of ent or informed of the interview. Sentencing was set for a future evidence of judicial intimidation, threat, or overbearance in date. Several months later they moved pro se to withdraw their the record." pleas. At the hearing, the government told the defendants that it would use their incriminating post-plea statements against them Riggs v. U.S. at trial. The court allowed all defendants to withdraw their 2000 Fed.App. 0129, 2000 WL365279 pleas. At trial, the statements made post-plea were admitted. 6th Cir. 4/11/00 The Sixth Circuit held that since the statements were made to Defense Counsel’s Employment as FBI agents post-plea that FRCP I le6 did not apply. The Assistant U.S. Attorney Not Actual Conflict Court pointed out that Congress expressly amended Rule 11e Riggs alleged that he received ineffective assistance of appel 6 in 1979 to provide that only statements made to prosecutors late counsel because his attorney Cox was an Assistant would be excluded. Furthermore, statements made after the fi United States Attorney. AUSA at the time of Riggs’ investiga nalization of a plea agreement could not be "made in the course tion and indictment; the grand jury transcript cover lists Cox of plea discussions." U.S. v. Watkins, 85 F.3d 498, 500 10th as making an appearance on the U.S.’s behalf during Riggs’ Cir. 1996 testimony; Cox represented a prosecution witness’s ex-wife; and Cox shared office space with two other attorneys who rep U.S. v. Webber resented co-defendants-turned-prosecution-witnesses. 208 F.3d 545 6th Cir. 3/31/00 The Sixth Circuit held that because Riggs could not demon No Sua Sponte Inquiry Required strate an actual conflict of interest that affected Cox’s perform on Waiver of Right to Testify ance at trial, Thomas v. Foltz, 818 F.2d 476, 481 6th Cir., In this case, the Sixth Circuit declined to hold that waiver of the cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 right to testify must be put on the record by the trial court and 1987, his conviction must stand. In dicta, the Court distin instead adopted the majority rule that no sua sponte inquiry is guished this case from the situation where the trial court is in required when a defendant fails to testify. formed of a potential conflict of interest and fails to make an Webber was tried on several drug offenses. Before the close of inquiry. In such a case, prejudice is presumed and reversal is the prosecution’s case, his attorney advised the court that they required. planned to raise an entrapment defense and that Webber would Further, even if there testify. The trial court then informed was an actual conflict, appellant must the defendant that if he tes show a causal connection tified and perjured himself, the court between any omission on the part of would enhance his sen counsel and the conflict. tence. Court At the close of the The dismissed the suggestion that mere fact of prior em prosecution’s case, Webber’s attorneyadvised ployment the trial court that they had as an AUSA automatically constitutes an actual con decided not to present an entrapment flict.* defense and that Webber would not testify.

On direct appeal to the Sixth Circuit, Webber argued that his right to testify was waived by his attorney, not him, and that the judge "chilled" his right to testify.

In holding that the trial court had no duty to sua sponte inquire of the defendant whether he was waiving his right to testify, the Court noted that such a requirement "might impede on an appro EMILY P. HOLT priate defense strategy, might lead the defendant to believe that Assistant Public Advocate defense counsel has been insufficient, or might inappropriately Appellate Branch influence the defendant to waive the Fifth Amendment right not 100 Fair Oaks Lane, Ste.302 to testify." Frankfort, Kentucky 40601 Tel: 502 564-8006; Judge’s Perjury Warning to Defendant Not Chilling Fax: 502 564-7890 As to whether the trial court’s discussion with the defendant re E-mail: [email protected] garding sentence enhancement for perjury was an unconstitu tional "chilling" of his right to testify, the Court quickly dis

46 THE ADVOCATE Volume 22, No. 4, July 2000

One interesting facet of this case is the voting pattern. Chief Justice Rehnquist wrote the opinion for the 7-judge Ernie Lewis, Public Advocate majority. Justice Breyer wrote the dissent, joined by the more predictable Justice Scalia. Justice Breyer did not believe that society was prepared to recognize as reason Bond v. UnitedStates able Bond’s subjective expectation of privacy. Justice Breyer Bond v. UnitedStates 120 S.Ct. 1462 believed the physical manipulation of Bond’s luggage to be no 120 S.ct. 1462 4/17/2000 more than what a passenger could have expected his luggage 4/17/2000 to have received from other passengers of the bus. Justice The question presented in this Breyer feared that the Court’s decision would "deter law en *Un1teI case, written by Justice forcement officers searching for drugs near borders from using Stateiv. Rehnquist, is "whether a law en even the most non-intrusive touch to help investigate publicly Allen forcement officer’s physical ma exposed 6tI bags." çir. , 5/4/200Q nipulation of a bus passenger’s F.3d- carryon luggage violated the UnitedStates v. Allen 2000WL 547599 6th1 Fourth Amendment’s proscription Cir. , 5/4/2000 against unreasonable searches." F.3d 2000 WL 547599 The case originated when Bond was on a California bus headed for Arkansas. As the bus went through Texas, Border An en banc decision of the Sixth Circuit written by Judge Patrol Agent Cantu boarded to check the immigration status of Boggs has reversed a panel decision upholding the privacy the passengers. On his way through the bus, he squeezed the rights of a defendant. The panel decision had ruled that an soft luggage in the overhead storage space. One of the pieces affidavit had been insufficient to establish probable cause for of luggage belonged to Bond. Cantu squeezed Bond’s luggage the issuance of a warrant. United States v. Allen, 168 F. 3d and felt a "brick-like" object. Bond agreed to have Cantu 293 6th Cir. 1999. In reversing the panel, the Court held that open it, and a brick of methamphetamine was discovered. "an affidavit based upon personal observation of criminal ac Bond was prosecuted in federal court and moved to suppress. tivity by a confidential informant who has been named to the His motion was denied, he was convicted, and appealed. He magistrate and who, as the affidavit avers, has provided reli 5th lost his appeal to the Circuit, and then sought review by the able information to the police in the past about criminal activ US Supreme Court, which granted certiorari. ity, though without further specificity as to the type of such activity, can be sufficient for a magistrate to find probable The Supreme Court reversed in a 7-2 opinion. The Court re cause to issue a warrant." jected the Government’s position that no search occurred in this case because Bond had no reasonable expectation of pri The issue in this case is how much corroboration need be dem vacy in his publicly displayed luggage. The Court focused on onstrated in an affidavit in support of a search warrant in order the fact that Agent Cantu had physically manipulated the lug to support a fmding of probable cause. The majority and the gage. "[P]hysically invasive inspection is simply more intru dissent agree that the issue is to be decided by applying Illi sive than purely visual inspection." While a reasonable person nois v. Gates, 462 U.S. 213 1983 to the facts of the case. would expect his luggage to be touched during transport, he Gates, the reader will recall, eliminated the two-part veracity would not expect a police officer to manipulate it in a search and basis of knowledge test of Aguilar/Spinelli and substituted for drugs. a totality of the circumstances test for the determination of probable cause supportive of the issuance of a search warrant. The Court went on to perform classic Fourth Amendment analysis. First, the Court found Bond to have exhibited an ac The Court rejects the panel decision’s fmding that the affidavit tual expectation of privacy by using an opaque bag in which to lacked probable cause under the totality of the circumstances. place his personal items. Second, the Court analyzed whether While the panel had found the affidavit wanting due to the Bond’s subjective expectation of privacy was one in which the lack of specifity regarding the type or amount of cocaine ob society was prepared to recognize as reasonable. "When a bus served, the informant’s lack of familiarity with the appearance passenger places a bag in an overhead bin, he expects that of cocaine, the absence of independent police corroboration of other passengers or bus employees may move it for one reason the informant’s statements, and the boilerplate nature of the or another. Thus, a bus passenger clearly expects that his bag affidavit, the en banc Court declined to address each of the may be handled. He does not expect that other passengers or failures. Rather, the Court found that the affidavit was suffi bus employees will, as a matter of course, feel the bag in an cient under the totality of the circumstances. The Court espe exploratory manner." Thus, the Court held that society was cially was impressed that the informant in this case was one prepared to recognize as reasonable Bond’s subjective expec known to the police, rather than being an anonymous infor tation of privacy. mant. Further, he had been involved with giving information Continued on page 48

47 THE ADVOCATE Volume 22, No. 4 July 2000

to the police over a five-year period of is not a necessit’ in a0flt0i1 Short TievsT. . Ernie Lewis, Public Advocate

The holdin of this case is sim le " W here a known peson, named the magis- to ojnmonwea4h, 525 $ d921Va:3I3 00 The Virginia Supreme trate to whose reliaibility an officer at Court has held that taking a ãrticu evasive -action at a checkpoint such as tests with some detail states that he has tmg mt a gas 51 tion and go ther directio oes not con tute rea seen a particular crime and particular evi sonable s picio sufficient o justi a s ppm Th s the evidence found dence in the recent past, a neutral and supportive of DUT m this case should a e been suppressed The Court cate detached magistrate may believe that evi- go ized ound ne a ch o o unc than reasonable dence of a crime will be found." uspicion Judge Gilman concurred, and wrote while 2. Smith v ‘it 753 2d F -t. l7/005. A general cQnsent to he believed there was an absence of prob p. earch given unrig a routine sire en ounter doe not authorize a search of able cause to support the issuance of the e sus ed s mouth a c mg to the Flo ida Co of Appeal Her; the warrant he would have decided the case Court held that the susp ct by holding Ins to gue down was escmdmg his based upon the good faith exception of onsent, Inch he had a right o do The officer instructed the suspect to hold United States v Leon 468 897 U S Ins mouth open Under these circumstances, the consent was not voluntary ‘ . Sd thus the motion to suppress shou d hài’e been granted. The Court sug gested that theFlorida Supreme- Court adopt a bright line rule "that requires Judge Clay wrote a stinging dissenting lear ye bal consent bef r the search of any body orifice The rule to insure opinion saying that the majority opinion an mdiv dual s right o privacy, should impose a dutyupon law enforcement to had driven a stake through the very heart infothia person f th&fi,It to rethse conent as well as the concomitant right of the Fourth Amendment." He character- . . * . . . to withdraw previously given consent. ized the majority holding as follows: "any tip provided by an informant who has pro- 3. Query v. :State, 725 N.E. 2d 129 md. Ct. Ap. 3115/00. A police officer has vided reliable information to :- the police in a duty to update his searc warrant affidavit, particularly where lab tests come the past is sufficient to constitute . probable back fmding that evidence seized during a controlled buy and found to be cause for the warrant to issue irrespective .. . . . - methamphetamme during a field test was not in fact methamphetamine. By of the bare generalized nature of the in- . . failing to update the affidavit, the officer had given the maoistrate less than the formation provided and without any cor- b L. L fill picture. The result was that the judge had less than full information to rob oration LIy tue poiice. assess jwh ther a search warrant should be issued." The Court further found that this did not qualifr under the good faith exception to the exclusionary rule According to Judge Clay, the majority misreads Gates. Gates requires us to con- * Irofossor Margaret. Raymond of the University of Iowa College of Law has sider the totality of the circumstances written a law review*ãrticle.that is worth noting. It is called Down oz the Cor when considering probable cause; Gates neC. Out in t e Street Considering the Character of the Náighborhood in was not intended to lower the threshold Evaluating Reasonable Suspicion 40 Ohio St L J 99 1999 You will recall for probable cause The flaw in the ma the recent case of Illinois v Wardlow 120 S Ct 623 2000 held that the char jority s holding in the case at hand lies in acter oCa high crime neighborhood combined with flight from the police is its failure to comply with Gates’ com- sufficient to establish a reasonable suspicion. Professor Raymond wrote her mand to consider the totality of the cir- article prior to Wardlow, Her thesis would have likelychanged the calculus in cumstances; instead, the majority relaxes Wardiow, She argues that considering the nature of a high crime neighbor- the probable cause requirement to a de- hood has a disparate impact on the poor and racial minorities "Poor people gree unsupported by Gates and allows for and people of color disproportionately live and work in less secure and more a warrant to issue based simply upon the crinie-ndden neighborhoods People found m high-crime areas or areas averment that the informant has provided ‘imown for drug trafficking’ are, purely as a statistical matter, more likely to reliable information in the past about be people of color A standard that considers bemg situated m a high crime

criminal activity. . . without the further * area’ a substantial justifiation for a police stop disproportionately burdens specificity as to the type of such activ- residents of those communities, subjecting residents of high crime areas to ity...’ In other words, the majority’s hold- more stops on less suspicion. Using the hàiacter of the neighborhood as a ing fails to account for the basis of knowl- factor in The determination of reasonable suspicion resdlts in the consideration edge of the tip." by proxy of the impermissble factors ofrace and poerty. Professor Raymond suggests an alternative. She would allow the use. ofthe character of the neigh borhood m the reasonable suspicion cdlculus, but only to the extent that the person being observed by the police behaves differently than. other law-abiding

48 THE ADVOCATE Volume 2Z No. 4, July 2000

citizens in that neighborhood. She states that "[b]ehavior clerks in Arizona v. Evans, S 14 US I 1 995, who are not that would typically be observed amongst law-abiding expected to be deterred by the exclusionary rule, .the pro- persons could not by itself support a finding of reasonable bation and parole officers would be deterred by invoca supicion, for it would violate the requirement that rea- tion ofthe nile.

sonable suspicion narrow the stop-eligible class of per- . .

sons. If such behavior is observed in. a high-crimejieigh-. 7. US v. Mohtero-Camargo 208 F.3d 1 122 . 9 Cir. borhood, the character ofthe neighborhood for crimmality 4/11/00 The en boric 9th Circuit has decided that having may otra the observations to reasonable suspicion. a Hisanic appeathnce does uiçct crátë an articulible äus To avoid this, the standard requires that the behavior lIaye picion for a stopping: The COurt staed that dçinographics some potential to narrow the stop eligible class before the have changed significantly since the decision m US v character of the neighborhood is taken mto account This Brignoni-Fonce 422 US 873 1575 "Reasonable suspi constraint permits the consideration ofreIevath ôôntextual cion reqáifés partieularized suspicion, and iitan area in information in the totality of the circumstances in4uiry * .wbich atge âvmber while meaningftnlly enforcing the requirement of’Brown v. , istic, that chthtacteristid . casts tob Wide, a’iiet toplay any Texas that stops not be justified purely on the basis of the part in a pirtibu1aried rëasoñable ;sàspieion detennina character of the neighborhood." Significantly, Professor tion." The çot went on to hold that having a Hispanic Raymond considers the factors affirmed in Wardlqw, and appearance i not an appropriate factor in the.réasonable

finds them wntthg. "Consider, for exaniple, . . . cases which susièioh calculus. : ‘ ‘ ! address whether flight in a neighborhood for * ‘ knoi, drug ! ** or other criminal activity can support a finding df reasoi- 8: Es porte Turner 2000 WL 3563 16 Ala. 4/7/OO. Where able suspicion. . . The inconsistent and unpredictable out- autliorikation for anticipatoryearch 4.varrants is altered by

comes in these cases may stem from the courts’ failure to a higher appellate court, the gQod faith excpption to . the ask the right question, which is whether flight m the pres exclusionary rule will not save a search conducted pursu ence of police is sufficiently uncommon among law ant to the earlier authonzation The Alabama Supreme abiding persons in the community that it effectively nar- Court went on to affirm that the pur3ose of’the’ exclusion- rows the stop-eligiblç class. If so, then the character of ary rule is not only to deter th police, butalso to deter the neighborhood for criminality may be èonidered in the judiciary, a párpose eschewed in U.S. v. Lebn, 468 U. evaluating whether reasonable suspicion is present,; ifnot, * . :5. 897 1984. ‘The appellate c’ourts; including this one, then it may not ‘ are duty-bound to preserve the rule of law in the issuance 5 Governor Paul Patton has issued Executive Order 2000 of search warranp Suppression of evj4ence seized pursu 475 on April 21, 2000, which will be of intersfto the antto a seatch w;nt issued thntrarytc,the rule oflaW is necessai’ to preserve th mle of law itself" ; *: readers of this colunin. * During the 2Ô00 General Assem- *

bly, Senator - . . . . Gerald Neal introduced a bill that would have -.% I ‘. . - _ - required the collection ofdata tolook at the issue ofraciâl ‘ - ! ¶ profiling by the*police. WhileJustióe Cabinët’Secretr 9. United5tpt v 0 ?QQO’. Cit 4/10/00. Robert F. Stephens, Attorney General Ben Chandler, and : The smell of urn meth he - s ogve prob Acting Statd Police Commissioner John Lile werej,resent le cause to s e ?pedxehi: cle. Inh s c c s ¶cracked - to endorse SenatoreaPs bill, thebillnever got out ôfthe . Senate Judiciaiy Committee. In response, the Go’enior wmdslue . t ipc e. n se ch has nàw acted by execdtive ordefto accomplislithé àni& , ? d goal. Through this exëciüiye o’rder, the dov6rnoiba or- - - "k dered that "no state law enforcement agenc’ oroftièia f’te e c e apd shall stop, detain, or search anyjthOh Qhe?n luch àctibn’ OWl uit is solelymotivated by consideration of face; óolor,oieth - el e, r ear at o - th nicity, and the action would ‘constitute- a violation of the - - 1 civil rights of the per6n." urthei the order iéqües that - 0 all law enforcethent agencies begin to coliectdata "Id bet- nw - ter define the scope and paranieters of the problejn of ia- d et2nlme, - cial profiling." - This was awë1comed bomagçou act r t provide on the Govethor’s part. ------c ------, - n- 6. People v. Spetice 93JaLRep: ?d 607 caGtApp. .‘, 3/10/00. Where the’policeely Upon a docli eat pit- - . - - pared by probation and paroie- officers in order to conduct 10 L a probation search, an4 the 4ocurnent is incomklek intei-. 203 es Sp - cert. tionally by omittinga search limitation, the good fait& ex- e 1 le ception to the exclusionaw nile does ridi apply. Uiililcë fo ;hc - c - - ur e, d - -, ------occupant’s e it thaj re - e

49 THE ADVOCATE Volume 22, No. 4 July 2000

while they obtain search warrant based on probable puase, in more than knocking on the doàr and entering forcibly at light of this court’s sugèstiohiif Seguth Untthd States, the moment the dor opens. - RatIir, the pclice must give 468, U.S. .796l94, th ,the person opening the :door the opportiiiifI to respbnd Fourth Amendment and prior 1 entry, abent some sortfexigentcircumstances, behavior is consist which was not shown in thicase. * -

11 Horton v Sta 14. T1ier is a fasciñatin law review article on .the Fourth The Texas inèndnient aild its appiicability to tschno1oy tyritten by when a: Stp.haii K Báyeniii 48 Drake L R. 239 2000. The f&ction - artic1e analyzes the different components of modern tech the limitsont] - - nology and attenpts to place those components within the sn. frameworkoftraditionalFourth Amendment analysis The conclusion drawn is that "it appears as thought the Fourth Amendment has tlnally met its match in technology or Traditional notions of privacy and possessory interests so] - hae become inreasmgly difficult to apply withthe amor ..orflja+th phous world of ietworks and the Internet Electronic 12. StáteV- toiimumcation in its various forms is a practical necessity -Il despite. its inherent dangers Thus the judiciary or the .otçteç;1 iegIsiauie iint acknowledge this dilemma and formulate reiiter appropriate responses’* aott&the ment 13.

Peremptory Challenges in Criminal Cases: the Kentucky History and the Federal Rule The history of allocation of peremptory challenges in Kentucky is interesting in what it reveals. Prior to 1994, the de fense had more peremptory challenges for an over 100 year period than the prosecution had:

1877 - 1893 Felony: Defense 20 Misdemeanors: Defense 3 Prosecution 5 Prosecution 3 1893-1978 Felony: Defense 15 Misdemeanors: Defense 3 Prosecution 5 Prosecution 3

1978 - 1994 Felony: Defense 8 Misdemeanors: Defense 3 Prosecution 5 Prosecution 3

1994 - PRESENT Felony: Defense 8 Misdemeanors: Defense 3 Prosecution 8 Prosecution 3

The federal Rule of Criminal Procedure 24b provides for 10 peremptories for the defense and 6 for the prosecution in felony cases: Peremptory Challenges. If the offense charged is punishable by death, each side is entitled to 20 peremptory challenges. If the of fense charged is punishable by imprisonment for more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges. If the offense charged is punishable by imprisonment for not more than one year or by fine or both, each side is entitled to 3 peremptory challenges. If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly.

The Kentucky Supreme Court is currently considering changing RCr 9.40 to the numbers in the federal rule.

50 THE ADVOCATE Volume 22, No. 4, July 2000

Get an IFP Order and DPA Appointment PRACTICE Corner Immediately after the client has been sentenced, trial counsel should obtain an order allowing the client to proceed on appeal informa pauperis IFP Litigation Tips & Comments and apppointing the DPA to represent the client on appeal. Without such an orders, the circuit clerk’s office is reluctant to file a timely Certificate of Collected by Misty Dugger, Service or to file the Notice of Appeal in the absence of a filing fee. Assistant Public Advocate The IFP order should specifically refer to KRS Chapter 31 and appoint DPA to handle the appeal. DPA must be appointed to appeal even if DPA repre sented the client below. Otherwise, the appellate courts and DPA will consider the appellant to be represented on appeal by trial counsel, orproceedingpro se John Palombi, Appellate Branch Manager

Challenge Conditional Discharge if Offense was Prior to July 15, 1998 In Purvis v Commonwealth, Ky. S.Ct., Opinion Rendered March 23, 2000, the Kentucky Supreme Court held KRS 532.043 was unconstitutional as applied to offenses committed before the effective date of the act July 15, 1998 when both elements of the ex postfacto law test are satisfied

- Misty Dugger, Assistant Public Advocate

MistyDugger Check Out these Web Sites htip://8cc-www.ca8.uscourts.gov/Oral-Araiscriras/GetRA.asp This web page allows you to listen to the oral argument made before the 8th Circuit U.S. Court of Appeals.

http://www.fpdmow.orc/re I 999.pdf Reversible Errors, a project of the Office of the Federal Public Defender for the Districts of Northern New York & Vermont, lists cases in which a criminal defendant received relief from a U.S. Court of Appeals or the U.S. Supreme Court.

- JeffSherr, Assistant Public Advocate

QUESTION: Can a conviction now under appeal be used to enhance as PFO?

ANSWER: No. Melson v. Commonwealth, 772 SW 2d 631 Ky. 1989 states that a prior conviction cannot be utilized for TRUTH IN SENTENCING or PFO until the case is disposed of by the reviewing court if discretionary review has been granted. It may, however, be utilized if the conviction is being collaterally attacked. A valid interpretation would be that if a motion for discretionary review is pending on the issues rather than on collateral matters such as an RCT 11.42 & CR 60.02, the prior can’t be used. Clearly, if the appeal is a matter of right appeal, the conviction cannot be used.

Thompson v. Commonwealth, 862 SW 2d 871 Ky.1993 states that a conviction can only be relied upon for TIS & PFO if it is a final judgment, meaning termination ofthe appeal or expiration of the time for taking the appeal. Kohier v. Commonwealth, 944 SW 2d 146 Ky. App. 1997 and Tabor v Commonwealth 948 SW 2d 569 Ky. App. 1997, also both indicate that convictions on appeal cannot be used in TIS or FF0 hearings.

-. Q & A Corner topics are gathered from the DPA list serves. All sources and contributors are kept confidential to protect the individual’s interests.

Practice Corner needs your tips, too! Trial attorneys, appellate attorneys, and others working to defend the accused, please share your knowledge. If you have a practice tip, courtroom observation, or other comments which would be useful to share with other public defenders, please email it to: [email protected].

Litigation tips and comments for The Practice Corner are collected by Misty Dugger, Assistant Public Advocate, Appellate Branch, 100 Fair Oaks Lane, Suite 302, Frankfort, Kentucky, 40601, email: [email protected].

51 THE ADVOCATE Upcoming DPA, NCDC, NLADA & KACDL Education

** ** ** ** DPA For more information regard KACDL * 2000 Death Penalty ing KACDL programs call or * KACDL Annual Conference Covington, KY Litigation Persuasion Institute write: Linda DeBord, 3300 Ma Kentucky Leadership Center November 17, 2000 ple Drive, LaGrange, Ken Faubush, KY; Leaf tucky 40031 or 502 243-1418 * * * ** ** * * ** * * *** ** * * ************ October 15 - 20, 2000 ** ** or George Sornberger at 502 NCDC * 2001 DPA Annual Public Defender 564-8006, ext. 230. Please notify NCDC if your address Conference ** * * * * ** * ** * * * has recently changed. Lexington, KY For more information regard June 11-13, 2001 ing NLADA programs call Tel: * * * * * ** *** ** * ** ** **** * * * ** ** * * ** 202 452-0620; Fax: 202 872- * 2001 Litigation Persuasion Institute 1031 or write to NLADA, 1625 ** NLADA ** Kentucky Leadership Center K Street, N.W., Suite 800, Faubush, KY Washington, D.C. 20006; * 78k" Annual Conference, October 7-12, 2001 Web: http://www.ntada.org Grand Hyatt Hotel * * ** * ****** ** NOTE: DPA Education is open only to Washington, DC For more information regard November 29 - December 2, 2000 criminal defense advocates. For more information: ing NCDC programs call Rosie http://dpa.state. ky.us/train/htmt Flanagan at Tel: 912 746- * Appellate Defender Training 4151; Fax: 912 743-0160 or New Orleans, LA write NCDC, do Mercer Law November 16-19, 2000 School, Macon, Georgia 31207.